Protecting brands

When I was in Shanghai last week, I bought a number of Chinese and English music CDs - not only are original CDs cheaper but, naturally, it’s possible to find music from more obscure Chinese performers. I took the CDs (together with some baby clothes I bought for my unofficial goddaughter Maya) to the nearest China Post branch to post them to Australia.

As I filled out the paperwork, the woman at the counter inspected the package contents and said “These look like originals. Are they?”

Curious, I asked why she wanted to know. She replied “Because pirated CDs are illegal. They can get seized by Customs”.

I was stunned. This is the first time I have ever heard a post office official - of any country - give a warning about pirated CDs. If I were to take a pile of very obviously pirated CDs (badly photocopied covers, plastic sleeves etc) to Australia Post or US Post, I doubt very much that the person at the counter would give me a warning and tell me that they are illegal. I asked her if she always gave this warning. She said that they have been receiving internal bulletins that tell them to watch out for pirated products.

I think this is fantastic progress for China. A big part of the problem we have with piracy is that most consumers don’t think what they are doing is wrong or illegal. But if they can get regular reminders about the illegality of their actions and the possibility of seizure - especially from places they least expect to receive a warning, like the post office - we may decrease demand for pirated material. Consumers will think twice about spending on something if they know it might be seized.

China Post is doing a fantastic job.

The government is cracking down on the inappropriate use of the word ANZAC. The use of the word ‘Anzac’ is protected under the Word Anzac Regulations which prevents use of the word without the authority of the Veterans Affairs minister. The Department of Veterans Affairs have never bothered to do anything before, but someone is unhappy about Tiger Airways having an ANZAC Day sale and iTunes‘ 50 ANZAC Songs list.

Nobody cares about Queen’s birthday sales and Christmas sales, why is
ANZAC so special that it has its own Super Trade Mark law?

How else are businesses supposed to refer to the national holiday if
they can’t use the ‘A’ word?

So when can ‘Anzac’ be used? Apparently approval will usually be granted where ‘Anzac’ is being used to name a street near a war memorial and in naming biscuits or slices, but only where the product conforms to the original recipe. Though ‘Anzac cookies’ would not get the departments approval as Australian’s do not refer to biscuits as cookies.

People on both sides of the opinion fence feel quite strongly about it.

The AFL have sent a letter of demand to a fan website for alleged unauthorised use of AFL intellectual property. The intellectual property in question includes images, the trade mark ‘AFL’ and club names including nicknames.

The AFL had given the fan site ContestedFooty until Wednesday to remove all IP owned by the AFL from the website, saying that it is attracting commercial gain through Google Ads.

Like the site owners, we’re a bit perplexed by this - revenue from the ads is insufficient to cover the cost of running the site and the trade marks are not used in a way that would be considered infringement. The images and names of clubs are used in discussions, just like any other fan website, not for merchandising purposes.

The AFL are known for their aggressive protection of their brand but have they gone too far? Is this protecting their brand or damaging it?

Notorious mother of octuplets Nadya Suleman has filed two US trade mark applications for the name “Octomom”. However, Suleman is having trouble because a computer game company filed an application for Octomom earlier than her.

The computer game company, Super Happy Fun Fun, Inc., have produced an application for iPhones and other technology called Octomom (it can also be found as the “Fertile Myrtle” game).

Suleman’s lawyer Jeff Czech has stated that Super Happy Fun Fun should have asked for Suleman’s permission before filing.

But under trade mark law, Suleman doesn’t have much of a claim to Octomom yet, and it is likely that Super Happy Fun Fun will be the winners of this trade mark battle.

An Australian manufacturer has won a design infringement case preventing the sale of copycat LED automotive lights.

LED Technologies has a registered design protecting the overall appearance of their rear LED light, used in trucks and trailers. The Court said that a copycat product made by Ren International and imported by Olsen Industries, Advanced Automotive Australia and Elecspess was too similar to the registered design. The test for similarity under the Designs Act is substantial similarity, meaning that a product does not have to be identical to infringe a registered design.

This case highlights the value of Design registration which is under utilised in Australia. LED Technologies were able to prevent the importation and sale of these copycat products as well as being awarded damages for losses suffered by LED Technologies.

Congratulations LED Technologies!

The Swedish Pirate Party are gaining political ground in the race for votes to win a seat in the European Parliament. The Swedish Pirate Party was started by the the founders of controversial BitTorrent sharing website Pirate Bay. The party has gained notoriety (and votes) from recent court cases alleging that the Pirate Bay website breaches copyright laws by making available materials protected by copyright.

The Swedish Pirate Party’s main political policy is to do away with current copyright laws as they consider them to be too restrictive. If the Pirate Party manage to secure a seat in the European Parliament will they be able to achieve their political goals? This is something we just don’t know. What we do know is that there will be a voice in the European Parliament for the relaxation of the current copyright policies.

For the meantime copyright owners can breathe easy as the Pirate Party haven’t secured the seat just yet. Given the current atmosphere, it just might happen.

Picture by Stuck in Customs via flickr.com

A Second Life Avatar has recently been registered as a trade mark by the US Patent and Trademarks Office for services provided on-line in Second Life.

Alyssa LaRoche, the owner of the controversial trade mark, must show that she has used the trade mark when providing the services listed in trade mark registration, in America within 5 years of the registration date for the trade mark to remain in force. This may be a difficult hurdle for Alyssa because we don’t know whether use in Second Life will be considered to be use in America.

There are a number of court decisions that indicate that when a trade mark is used on the internet it is considered to be used in the country where it is being viewed or downloaded. Therefore this trade mark may be considered to be used in America if consumers of services provided under this trade mark reside in America.

Cuba is jailing factory workers who produce counterfeit cigars. Authorities report that they are confiscating over 1,500 boxes of counterfeit cigars each month.

The counterfeit cigars reproduce the labels of well known and expensive cigar brands. A box of counterfeit Cuban cigars tends to sell for a price that is five times lower than the ‘real’ Cuban cigars.

In most countries, the company hiring these workers would be responsible for the breach of intellectual property rights, and directors would be punished. Surprisingly for a communist country, it is actually Cuban workers who are facing jail time.

India’s Congress Party has bought a licence to use Jai Ho, the Oscar winning song from the film Slumdog Millionaire for approximately AUS$300,000. The Congress Party have wasted no time in claiming political rival the Bharatiya Janata Party (BJP) has infringed Congress’ rights for playing the song during a political event.

Popular Bollywood songs are often reworked to convey political messages and played over loud speakers in the lead up India’s elections. Though this is the first time a political party has bought the exclusive rights to use a song. The elections where sum 714 million people are expected to vote will be held during April and May.

The BJP have stated that the song and the film should belong to the people and have further stated that Jai Ho, the title of the song, is a commonly used greeting and that everyone should have the right to use it.

Clearly the BJP do not understand copyright law. No one is stopping them from using Jai Ho as a greeting, they just can’t use the song during their campaign.

Alvin Singh developed an iPhone app to offer Sydney train and ferry timetables and offered it on the iTunes app store. RailCorp - NSW’s public transport corporation - threatened Mr Singh with copyright infringement litigation if he continued to sell the app, asserting ownership of copyright in the timetables.

After an investigation by Asher Moses of the Sydney Morning Herald, it was discovered that other app developers had been similarly threatened. Strictly speaking, RailCorp are legally entitled to assert copyright ownership over the timetables. I confirmed this for the newspaper, also explaining that copyright law is weighted in favour of government (for example, Crown copyright which was used to limit information on the Victorian bushfires), but that the power should come with a responsibility to use it wisely.

Particularly since Mr Singh was acting more in the public interest than RailCorp - he offered RailCorp the code for free if they wanted to build their own version.

But there’s a happy ending. To his credit, NSW Premier Nathan Rees has now intervened, telling RailCorp to meet with the app developers to see how their work could be utilised for the benefit of Sydney commuters.

The lesson for any software developers - check that content does not come from a copyright protected source. Just because it is publicly available does not mean you can use it without permission.