Protecting brands

This Sunday 28 February, I’ll be speaking at Buffet, the first tradeshow and public expo in the Asia-Pacific region dedicated to Streetwear, Sneakers, Contemporary Style & Culture, Design, T-Shirts, Accessories and much more.

It’ll be a conversation between Eddie Zammit, t-shirt collector and editor of T-World magazine, and I.

If you want to know more about intellectual property and protection of fashion designs, come along! I’ll try to get copies of IP Australia’s guide on IP and fashion, Fashion Rules, for all attendees.

Other forum sessions feature fantastic guest speakers, from Australia and overseas.

Tickets here.

PS. Just heard that there aren’t many tickets left, so better act quickly if you’re interested.

The organiser of themed dinner parties has been warned by Warner Bros against holding a Harry Potter party on Halloween.

Warner Bros pulled out the trade mark and copyright guns and alleged infringement.

This reminds me of the time Disney told a kindergarten they weren’t allowed to have a Disney themed concert.

Can the studios prevent themed parties?

Not if they’re private. It wouldn’t make sense and it would be very difficult to show infringement. But the moment any money changes hands, organisers potentially fall into their sights. Ms Marmite Lover, the organiser, pleads on her blog that she makes very little money from dinner parties. Little money is still money which is still use in a trading/business context.

At the end of their letter, Warner Bros said that they had no problem with a generic wizard/Halloween theme, but some guests came as Harry Potter characters anyway.

The trade marks register can sometimes reveal corporate infighting that would otherwise be kept quiet.

It shows that Sir Richard Branson’s Virgin Enterprises is opposing trade mark applications for V Australia by a company associated with locally owned airline Virgin Blue. Huh? Virgin is opposing itself?

Normally, Virgin Enterprises owns all Virgin trade marks (Virgin Mobile, Virgin Superannuation etc) and licenses them to its joint venture partners. Sir Richard is, after all, an expert licensor. In this case, the Australian company beat Sir Richard to filing a trade mark application, and we can only guess that he doesn’t like it. I told the Age/SMH that if the Australians are successful, this would probably be the first time Sir Richard has lost control of any part of his brand.

The parties have taken 21 months to negotiate a resolution, and there does not appear to be an answer yet.

Mischa Barton has done the creative celeb thing and is selling a range of handbags with her own brand.

All well and good, except that when she tried to register a trade mark in Australia for her name, her signature and her logo, she ran into an opposition from Australian company Mischa Accessories, which distributes handbags.

Likelihood of confusion between the two Mischas? In an interview, I asked Larry Emder, and he said he thinks he’d be confused! That’s good news for Mischa Accessories, but they’ll have to show that the rest of the market feels that way too.

Microsoft has opened its second flagship retail store (bottom left), and some are saying that these are copies of the Apple stores.

Similarities are lots of open space and broad, clean tables with equipment for customers to try.

Perhaps Microsoft was inspired by the design of Apple stores, which have certainly been successful in showcasing Apple products.

The real issue is whether Microsoft is legally able to do this.

And the answer is yes.

There is no ownership in the concept of a big, open store with lots of space and equipment on tables. Apple may be the first computer company to make the concept a key part of its brand, but being first is not enough. A much higher standard of originality would be needed for the possibility of any protection.

Unique shopfittings, signage, lighting and items of furniture can potentially be protected through registration but store designs/layouts are generally unprotectable.

Shepard Fairey has now admitted that he based his iconic poster on a different photo than originally claimed, despite his aggressive decision to sue The Associated Press after they accused him of copyright infringement.

Now it seems AP had correctly identified the source photo after all. Worse, Fairey has admitted fabricating evidence: “In an attempt to conceal my mistake, I submitted false images and deleted other images. I sincerely apologise for my lapse in judgment, and I take full responsibility for my actions, which were mine alone.”

His whole defence was based on ‘fair use’. Now that his actions have been revealed to be suspect, it will be very difficult to convince the court of ‘fairness’.

Trade mark applications for Jennifer Hawkins‘ swimwear brand have been opposed by local label Caussie.

Caussie sells men’s swimwear primarily on ebay.

While it looks like a David and Goliath battle, with Jennifer’s products being backed by retail giant Myer, it will probably all come down to whether Caussie and Cozi by Jennifer Hawkins are too similar.

Caussie looks like it was a play on Australian slang Cozzie, meaning swimwear, as well as the word Aussie.

While Cozi by itself would normally have been a purer and better trade mark, in this case the addition of the words ‘by Jennifer Hawkins’ will help Jennifer’s camp argue that the similarity is insubstantial.

You may have seen the recent newspaper story about Apple Inc opposing the new Woolworths logo (pictured).

Currently Apple has 13 trade mark oppositions on foot in Australia.

Some of these look like obvious attempts to hop onto Apple’s iPod and iPhone bandwagon. Even before the trainwreck of iSnack 2.0 (which thankfully Kraft have decided to change).

There’s the dopi logo (pictured), which covers computer and MP3 accessories. If you didn’t notice, dopi is just ipod in reverse.

Apple is also opposing iMove, Octopod and Versapod.

Then there are the apple logo marks (pictured), like Poison Apple (music festivals) and the Adults Only logo (Foxtel cable channel).

But I think they may have gone too far with opposing an application for Pineapple (entertainment services). Even though the word ‘apple’ is included!

What do you think is fair and reasonable for Apple to own? Where do we draw the boundary for i-, -pod, and apple marks?

Kraft, the manufacturers of Vegemite, held a competition to name a new, more spreadable version.

After receiving 48,000 suggestions, they chose iSnack 2.0.

I’m not sure that’s a great idea, because Breville already own isnack as a trade mark for snack makers and sandwich toasters (although they’re not currently using it). It doesn’t necessarily stop Kraft from registering isnack 2.0, but it could get a little confusing – for the consumer, is isnack a toaster or a spread?

In any case, when coming up with a new brand name, it’s normally not wise to simply add ‘i’ or ‘e’ to a generic word in your product category because a Trade Marks Examiner is unlikely to let it through. The name won’t be seen as distinctive enough. For example, a furniture manufacturer is unlikely to be able to register ICHAIR or ECHAIR.

As a final note, iSnack 2.0 has already come under criticism – plenty of Twitter posts saying it is a stupid name. And a website has already sprung up to attack the name.

There have been quite a few fashion copying cases recently.

And I have been getting calls from designers asking how they can protect their designs.

I don’t have a lot of time to give telephone advice, so I have been wondering whether it is worthwhile conducting a seminar on protection of fashion designs.

At a seminar I would be able to go into a lot more detail and run through case studies.

If we organised an event for November, would you be interested in attending? If I get enough interest (we need an audience of at least 100), I’ll do it.

Let me know by leaving comments below or sending me an email – info (at) choylawyers.com.au.