We’re moving! Come to our our new home, protectingbrands.com.au

We’re moving!

Please visit us at our new home, www.protectingbrands.com.au.

There’s already a new story waiting for you, on the Lord Of The Rings trilogy, and New Line Cinema being sued by the heirs of JRR Tolkien!

The new enhanced platform will allow us to do more interesting things with blog entries – you can vote on questions or provide your opinions. This is all coming up soon so it’s very exciting…

All those who signed up through the Subscribe link at the top of this page have been automatically transferred to the new site (you won’t need to sign up again). If you subscribed through RSS, you’ll need to visit the new site and subscribe again. It’s generally best to subscribe using our Subscription page because we can send you notification of new activities and exclusive publications without having to post on the blog.

Any problems (ie you don’t receive our regular stories on Mondays and Thursdays), please contact us by leaving a comment below and our administrator will help you to resolve it.

Who invented the iPod? Not us, says Apple

The inventor of the iPod is a 52 year old British man, Kane Kramer.

During patent litigation with Burst.com, who were claiming a share of Apple’s iPod profits, Apple flew Kramer to the US and paid him to give evidence about his 1979 invention, showing that Burst.com’s claims were flawed.

Kramer patented the invention worldwide but couldn’t afford to pay the annual fees to keep it registered.

He said “I can’t even bring myself to buy an iPod for myself. Apple did give me one but it broke down after eight months.”

Without a valid patent, he can’t claim any royalties from Apple, whose sales of 100 iPods per minute turned around the fortunes of the company.

If you are an inventor, keep your intellectual property registered, otherwise you have nothing.

And learn how to keep your investors happy, they’re critical to your success.

Mens Gallery Melbourne vs Mens Gallery Sydney

‘Gentlemen’s Club’ Mens Gallery Melbourne has successfully stopped its Sydney namesake from registering its corporate logo as a trade mark in Australia. This happened at a Trade Marks Hearing.

The Mens Gallery Sydney applied for a trade mark for its logo, covering “Theatre restaurants (entertainment services)” and “Theatre restaurants (provision of food and drink)”!

The Sydney application was rejected.

This doesn’t mean the Mens Gallery Sydney will have to change its name, but without a registered trade mark, it can’t stop others from using a similar logo.

Some lessons to learn from this case:

The Hearing Officer was critical of the evidence supplied by the Sydney applicant – photocopied, not original statutory declarations; documents sometimes referring to the Mens Gallery words instead of the Mens Gallery logo; spelling mistakes; lack of dates; meaningless financial information.

Also, the attorneys for the Sydney application did not show up at the hearing, although the Melbourne group was represented by a leading barrister. Attendance is strictly not essential, but you can hardly complain about losing a hearing if you don’t take it seriously enough to show up. If you are serious about winning, do it properly.

“Redskins” not racist, what about “wogs”?

A US Federal Court has held that the Washington Redskins name is not racist.

The name has been a source of considerable criticism over the years, inspiring hate websites.

What about “wog”? Would IP Australia, the Australian Trade Marks office, refuse to register “wog” here?

Nope. There are several “wog” marks. Wogarama, for example, is owned by Third Costa Pty Ltd (presumably a company associated with Nick Giannopoulos) for entertainment services.

But not all have been registered. In 2006, a Tim Pirzas tried to register WOG FOOD for books but failed. Probably not because of racist reasons – because it’s descriptive of meditarranean food. Descriptive terms cannot generally be registered as trade marks.

$100 million awarded for Bratz/Barbie paternity suit

Following on from my earlier post about the Bratz / Barbie litigation, a US jury has awarded Mattel $100 million for the infringement of its rights, finding that Bratz dolls were wrongfully created using intellectual property taken by former Mattel employees.

Mattel had asked for $1.8 billion, $1 billion in Bratz profits and interest, and $800 million related to causing a breach of contract.

MGA, the manufacturer of Bratz, intends to appeal.

Will Bratz dolls continue to be manufactured? Nobody know yet, negotiations are continuing.

Image credit: Zoey101@HSM**!!

Star Wars – whose victory is it?

Lucasfilm Ltd, the makers of Star Wars, had a victory in a copyright case against Andrew Ainsworth, who sells stormtrooper helmets online.

Sort of.

Ainsworth created the Stormtrooper helmets for the first “Star Wars” movie in 1977. He claimed he owned copyright in the design. Lucasfilm disagreed and sued him for copyright infringement, winning a $20 million judgment in a California Court in 2006.

But a UK High Court judge said Ainsworth’s U.S. sales, £25,000 to £30,000 ($50,000 to US$60,000), were not significant enough to bring him under U.S. jurisdiction. So he refused to order Ainsworth to pay the $20 million judgment.

Ainsworth is claiming victory, saying he can continue selling Stormtrooper helmets anywhere except the USA.

Moral of the story – if you hire someone to create anything for you, you can avoid making the same mistake as Lucasfilm simply by coming to an agreement over ownership of copyright. And it’s best to do this at the time of creation, not 30 years later when millions of dollars at stake.

Sexyland and Superman – but the complaint is coming from an unexpected source

Adult superstore Sexyland is under fire for using a Superman style figure for its Father’s Day billboard advertisement.

The cartoon superhero has “Sexy Man” across his chest and the tagline “Super ideas for Father’s Day”.

Australian Family Association president Angela Conway told the Herald Sun “Given they are using the superman image reinforces that they are targeting kids or, at the very least, are recklessly indifferent to the impact the signs would be having on parents who try to mediate what their kids are exposed to. These type of sexualised messages should not be allowed in the public domain.”

Interestingly, DC Comics, the owners of the Superman film rights haven’t complained, although they are no doubt protective guardians of the very valuable rights (see previous blog entry on the original sale of Superman rights for $130).

They could very easily say that the ad is abusing their rights.

But it’s a catch-22. If they complain, they could draw unnecessary attention (and give extra free publicity) to an adult products retailer with whom they would not want to be associated.

It’s always worth thinking twice before unleashing the lawyers.

Who exactly is a True Christian®?

Fundamentalist Christian church Landover Baptists believe that they’ve worked it out.

Without going into detail about their beliefs, they’re, ahem, a little different from your neighbourhood church. Female church members can get fined up to $200 for using tampons or wearing long earrings. Dancing and failing to get a demon-possessed infant sterilized also attracts fines. Oh, and apparently the Devil is using Olympics Basketball to get teenage boys to masturbate.

They don’t like Mexicans, Arabs, Asians, homosexuals, Catholics, Presbyterians, Mormons, Methodists – basically anyone except themselves, the real True Christians®.

True Christian is marked with either a ™ or ® symbol at various places on their website.

Given that they have their own set of rules for everything they probably won’t care that they can’t legally use the ® symbol without having a registered trade mark (which they don’t have). Although the US Trademarks and Patents Office – sorry, the Devil – could prosecute them. However, they, and anyone else, can use the ™ symbol without restriction, as ™ simply means that the user is claiming exclusive rights and may or may not have anything registered.

Thanks to the reader who alerted me to this.

Hari Puttar – not a spelling mistake, but Warner Bros are suing!

Warner Bros, producers of blockbuster Harry Potter movies, are suing the makers of a Bollywood children’s film called Hari Puttar – A Comedy of Terrors.

“The movie has nothing to do with Harry Potter,” protested the 11 year old star of the film, Zain Khan.

In the film, a 10 year old boy nicknamed Hari Puttar moves to Britain and recovers a stolen top secret computer chip originally developed by his father for the Indian Army.

A key difference is that unlike Harry Potter, Hari has no magic powers and is certainly no wizard.

Not that Warner Bros care. To them, the title itself is too close.

Titles are not protected by copyright law. We’re not sure whether they’re suing under trade marks law (Warner Bros have several Harry Potter trade marks in Australia, presumably they have registered the title in India too), or passing off. Either way, the Harry Potter series has a formidable reputation so it should be an interesting case.

Naughty, naughty Dell! You can’t own ‘Cloud Computing’

Computer company Dell has attempted to register the term ‘Cloud Computing‘ as a trade mark.

At first, the US Patents and Trademarks Office let the application through. Then it changed its mind at the last moment and decided to re-examine the application.

Dell’s attempt to register ‘Cloud Computing’ is naughty because it is commonly used to describe the concept of using Internet based services by consumers with no knowledge of or control over the technology.

Commonly used, generic concept terms should not be registrable as trade marks because everyone should have the right to use them. This is, in fact, why terms lose trade mark protection once they become generic. Very much like the Ugg boots case.