Tag Archives: Euroids

The color purple

Originally posted 2015-06-19 15:13:46. Republished by Blog Post Promoter

Cadbury-PurpleCadbury is purple in the face over not being able to secure the wordlwide exclusive rights to the use of the color purple in association with the sale of chocolate — even as against an Australian company that’s been using the two together for almost a century:

Cadbury tells me it is “vigorously appealing” against a judgment over the use of purple. In a case that it has pursued for five years, Cadbury has tried and failed to stop Darrell Lea, an Australian chocolate manufacturer, from using the colour.

Despite the fact that Darrell Lea was established in 1927 and has been using purple for most of its existence, Cadbury insists that it has no right to the colour. Cadbury has registered one shade of purple in relation to block chocolate in tablet form in Britain but it has not been as successful elsewhere.

Purple, actually, may be the oldest legally-protected “trademark” color, of sorts. The color was, at certain times during ancient times and antiquity, permitted to be worn only by the nobility. To which, in the chocolate sense, Cadbury may or may not have a claim. I do like the stuff, and perhaps it is among the elite in the chocolate hierarchy. Certainly compared to virtually anything else the English make it is uniquely edible — but regal?

UPDATE:  Cadbury’s claim melts in its hands, not just in our mouths.

UPDATE II:  Settled, dismissed, whatever. It’s all over but the calories!  Via @IPThinkTank.

UPDATE III: Yes.  But no.  I mean yes.

An emphatic NO!

JOOP!

Chatty Kathy:

German designer Wolfgang Joop’s bid to have a punctuation mark trademarked [sic] for his Joop! clothing and perfume company has been denied by European Union judges. Joop applied to register two versions of an exclamation point: the first is a simple exclamation and the other is inside a rectangular frame.

Can’t blame him for trying!

Say — maybe he can get a registration for WRITING IN ALL CAPS INSTEAD?!

But, of course

Shoes are dropping all over Europe:

L’Oreal, the world’s largest cosmetics group, has launched legal action against eBay, alleging the online auctioneer does not do enough to combat the sale of counterfeits, the company said on Monday.

We’ve been genuinely interested in this issue for a long time — if you’re new, click here and here.

… and Europe Strikes Back: Google Loss Upheld by French Court

A friend painfully close to the case forwarded this link reporting that Google has lost its appeal of a judgment for “trademark counterfeiting” against the French travel companies Luteciel and Viaticum:

GOOGLE LOSES FRENCH TRADEMARK APPEAL

A French appeals court upheld a ruling against Google’s advertising policy in a decision published Wednesday, ordering the Internet search engine to pay 75,000 euros in damages to two companies whose trademarks it infringed.

The court found that Google was guilty [sic] of “trademark counterfeiting” and ordered it to pay the damages originally awarded to French travel companies Luteciel and Viaticum, as well as costs.

(Why “sic“? Because in civil cases, there is no such thing as “guilt” — only findings of liability or non-liability. Even in Europe. Even in France. I felt you should know that.)

Here are some key points in the decision, translated rather clumsily on the site linked to above:

  • “[I]t is necessary to point out that its liability is only sought with regards to the second capacity and this capacity alone” In other words, this is solely an issue of secondary, i.e., contributory, trademark infringement.
  • “Considering that no circumstances of force majeure existed that may exempt it from liability, where and insofar as it is proved that two other service providers in the field of paid positioning, the companies OVERTURE and ESPOTTING were faced with the same problem and managed to resolve it promptly and that GOOGLE FRANCE also managed to do so, although with some delay” This again goes to the killer point that middleman-type providers have here: The claim that “we can’t police the whole world” is (a) not credible when others do and when (b) you manage to do it when you really, really, really have to and (c) you’re making a mint.
  • “Considering that . . . GOOGLE FRANCE, even if it had legitimately not been aware that the companies were the holders of the contentious marks, could not offer the purchase of the words ‘bourse aux voyages’ or ‘bourse de voyages’ or even ‘bdv com’ in its keyword suggestion tool, on the pretext that they were high among the most often requested key words, without carrying out a serious study of the potential rights of third parties over these words ” It’s not only a matter of what the U.S. courts call “willfull blindness” (which can result in a third party such as an auction site or a flea market being held contributorily liable for infringement) — there’s evidently an affirmative duty on the part of providers of services such as Google to inquire, at least under certain facts, if there are trademark issues.

No, this is not the applicable law in the U.S., but it matters for a few reasons. One is that the factual findings here will undoubtedly influence Google’s posture in future U.S. litigation. Another is that Google will have to make changes in the way it does business — which it already has begun to do, anyway — and this will affect both its overall service platform and its ability to say what it can, can’t, will and won’t do in the U.S. And the other is that, as is well known, there’s really no such thing as U.S. law, anyway. (And in a Googled-up, wired-up, hyperlinked world, isn’t that really what we all want?)

Okay, that might be bit much. But then, evidently, was Google’s share price in early February. Buying opportunity tomorrow, gang! I’m riding the stock all the way — when you got a position like I do (ten shares), you don’t want to go and panic the market…

UPDATE:  From Reuters “news” service, March 2010:

The European Court of Justice (ECJ) said on Tuesday advertisers were free to buy keywords identical to trademarks of rivals as long as consumers were not confused on the provenance of goods and services by the way ads were displayed online.

The court said that in cases where ads could confuse consumers, brand owners should invoke their rights against the advertisers concerned, not against Google — unless Google failed to act on a complaint or actively manipulated keywords.

Best of 2008: “The Color Purple” (April)

This was first posted on April 14, 2008.
Cadbury-PurpleCadbury is purple in the face over not being able to secure the wordlwide exclusive rights to the use of the color purple in association with the sale of chocolate — even as against an Australian company that’s been using the two together for almost a century:

Cadbury tells me it is “vigorously appealing” against a judgment over the use of purple. In a case that it has pursued for five years, Cadbury has tried and failed to stop Darrell Lea, an Australian chocolate manufacturer, from using the colour.

Despite the fact that Darrell Lea was established in 1927 and has been using purple for most of its existence, Cadbury insists that it has no right to the colour. Cadbury has registered one shade of purple in relation to block chocolate in tablet form in Britain but it has not been as successful elsewhere.

Purple, actually, may be the oldest legally-protected “trademark” color, of sorts. The color was, at certain times during ancient times and antiquity, permitted to be worn only by the nobility. To which, in the chocolate sense, Cadbury may or may not have a claim. I do like the stuff, and perhaps it is among the elite in the chocolate hierarchy. Certainly compared to virtually anything else the English make it is uniquely edible — but regal?

UPDATE: Cadbury’s claim melts in its hands, not just in our mouths.

UPDATE II:  Settled, dismissed, whatever. It’s all over but the calories!  Via @IPThinkTank.

UPDATE III: Yes.  But no.  I mean yes.

No comments here, but they are still open at the original post.

Keyword advertising law à la française

But, of course?

Google wins! LVMH wins!

Only it’s the same case.  And they’re on opposite sides.

Is this as Euro-law thing?  Something particularly Frankish?

No, it’s an Internet law thing. A 21st-century thing.  And the French have the same problem we do:  Judges are trying to figure out what “the law is” about keyword advertising, but “the law” of trademark infringement and unfair competition predates keyword advertising.

Analogy only gets you so far.  And the answer to the problem is the same over there as it is over here:  Policymakers — whatever they call those in France these days — make some policy!  Tout de suite.

Ban that man!

London’s Times:

People who illegally download films and music will be cut off from the internet under new legislative proposals to be unveiled next week.Internet service providers (ISPs) will be legally required to take action against users who access pirated material, The Times has learnt.

That is certainly interesting, though hardly enforceable. Of course, the UK is the country where you need to buy a license to have a television (at least in theory).

The Vuvuzela: Threat or menace?

Who knew someone would find a way to “school” Americans on annoying noises?

There’s lots of stuff I don’t know, believe me.  One of them is, what’s all this I hear about disputes concerning the IP rights in, around and with respect to  …

VUVUZULA HELL?

I still don’t know.  I don’t watch soccer.  I don’t like it.  I don’t acknowledge that it is properly referred to as “football” in the American language.  I don’t care about who wins the World Cup, as long as the people who do care don’t have their riots in my neighborhood.

But the Pittsburgh Trademark guy is, as his city of affiliation would suggest, a lot hardier than I am, including when it comes to his willingness to delve into this burning issue.  (Well, he is also a lot younger.  What’s your point.)  So:  Who “owns” the Vuvuzula?  And, if you are the sort who calls it “football” (I have readers like that?), you’ll certainly want to know what the Europeans think about that (hat tip to Fred — yeah, as in Frederique… of course… ) — since they’re, you know, so European and all.

Vuvuzula?  Gesundheit!

European trademark law swinging from vines

Unlike in the good old U.S. of A., Tarzan’s yell doesn’t cut it in Europe — at least not as a trademark:

Tarzan’s distinctive yell cannot be registered as a trademark because it is almost impossible to represent graphically. Sounds can be registered as trademarks, but the ruling (pdf) could limit that to sounds that can be written in standard musical notation.Tarzan was created by Edgar Rice Burroughs and the application to register as a trademark the sound of the jungle resident’s scream was made by Edgar Rice Burroughs Incorporated. The Office for Harmonisation in the Internal Market (OHIM) refused the application on appeal.

The application had included two pictures said to represent the sound of Tarzan’s call, one an image of a wave form representation of the sound, the other a spectrogram of the frequencies of the yell.

“What has been filed as a graphic representation is from the outset not capable of serving as a graphic representation of the applied-for sound,” said the OHIM ruling. “The examiner was therefore correct to refuse the attribution of a filing date.”…

The OHIM ruling creates a problem for people trying to register sound marks that are not music, since it said that musical notation is the valid way to express sound files and some sounds cannot be expressed in that way.

Yes, problem indeed. The applicant even tried to describe the yell verbally:

‘The mark consists of the yell of the fictional character TARZAN, the yell consisting of five distinct phases, namely sustain, followed by ululation,followed by sustain, but at a higher frequency, followed by ululation, followed by sustain at the starting frequency, and being represented by therepresentations set out below, the upper representation being a plot, over the time of the yell, of the normalised envelope of the air pressure waveform and the lower representation being a normalised spectrogram of the yell consisting of a three-dimensional depiction of the frequency content (colours as shown) versus the frequency (vertical axis) over the time of the yell (horizontal axis).’

In other words, a Tarzan yell. Indeed, the decision sets forth, as one argument of the appeal, “[Applicant] maintains that it is perfectly clear what the present mark is. It is the sound of the fictional character Tarzan yelling, a sound that is well-known throughout the European Community. Virtually everybody would be able to tell you ‘what is the Tarzan yell?’. ” Yet as the tribunal notes, “everybody knows” is not evidence; and the esoteric graphic depictions of the yell proffered as specimens are not meaningfully amenable to reproduction, much less ready recognition. What good is a trademark registration when the public cannot be put on actual notice, on investigation, of what the mark is?

The solution would seem to be an amendment of the relevant statute permitting the use of sound files, which in this day and age should be roughly as accessible as visual files, as trademark specimens. If we accept the premise of sound trademarks at all it’s hard to imagine why they aren’t not only permitted, but required as the most preferred form of exhibit. I’m going to have to ask Jane what I’m missing here.

Come again?

Reuters reports:

Apple Computer Inc. said on Tuesday a proposed French law that would force Apple to make sure that songs bought on its iTunes music store can work on any portable player would result in “state-sponsored piracy.”

Wow. Talk about seizing the moral, if idiotic, high ground!