Friday, August 05, 2011

European Union EU Trademark Law: OHIM Board of Appeal Says No to National Geographic Trademark for Traditional Yellow Rectangular Frame on Magazine Cover

Note: OHIM is the European Union agency responsible for registering trade marks and designs that are valid in all 27 countries of the EU.

We are great fans of National Geographic Magazine,
but in trying to get a blanket European trademark
for their traditional yellow magazine border,
the National Geographic Society has gone a bit too far,
and so the OHIM Board of Appeal recently decided,
finding the magazine border in the image below
not subject to a blanket trademark for all 27 EU Member States.

As written at TaylorWessing Brands Update:

"Not only does this case confirm the general trend in CTM case-law that it has become increasingly difficult to register relatively basic geometric shapes as marks at OHIM, but that proving acquired distinctiveness of non-word marks is a very tall order given the need to show this for all 27 Member States."
By the way, ponder for a moment how you would trademark a particular color code for a border like that in terms of online color coding? or could you trademark a "range" of online colors so as to exclude potential similarities? How much would a color on a border have to diverge in order NOT to infringe such a color-based trademark? what about the dimensions of the border? how about book borders? or picture frames?

Women's Handbags, Design Patents and Copyrights

First of all, as a man, what do I know about women's handbags?
Really, not a lot. So I think I look at this neutrally.
At best, I grumble at the dearth of decent men's wallets in passport size here in Germany. An average wallet is simply too small.
But I can distinguish QUALITY.

At the New York Times On the Runway, Cathy Horyn in Proenza Schouler Doesn’t Care for Target’s Messenger discusses the problem of copied designs in fashion.

Based on this particular example, such designs should surely not be protected by copyrights OR design patents.

At Addressing Fashion’s Intellectual Property Conundrum, The Business of Fashion (BoF) reproduces the following photograph from which shows the "high fashion" Proenza Schouler PS1 at the left and the everyday "imitation fashion" Target Mossimo Messenger at the right.

L: Proenza Schouler PS1. R: Target Mossimo® Messenger | Source:

I trust the females of this world to be able to distinguish a high quality and very high-priced Proenza-Schouler leather bag (from ca. $895 to $4250) from the somewhat "similar-looking" (I think it is a stretch to say they "are" similar) and clearly much lower quality low-priced $35 mass market Target imitation leather bag with cheaper strap design etc.

The odds that a legitimate potential buyer of the high quality Proenza-Schouler bag would switch to the much lower quality bag are zero, nor will a buyer of an exquisitely designed Proenza-Schouler bag shirk away from that brand because of such cheap mass market non-identical copies in the same Target store.

The buyers of these bags come from two different financial worlds. It is like comparing a Mercedes with a low-priced compact car. All cars bear a lot of similarity to each other because they exercise a similar function, under the motto that FORM follows FUNCTION. But DETAILS are at the root of QUALITY. Both of these bags are easily distinguishable.

It is this kind of problem in other fields that is treated exactly opposite by the patent laws and patent court decisions, that would surely award a monopoly patent on this design if they could and then prohibit ANYTHING SIMILAR from ever coming onto the market, at any price. Indeed, any bag with two straps would probably be suspect as a patent infringement!

Surely the law has better things to do than getting involved in design quagmires -- and that applies to entire field of patents, where nearly everything designed is found in one form or another in prior art. EVERYTHING.

The MARKET should decide, NOT ill-considered monopolies granted by the law.

That is the basis of capitalism.

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