Brand Name Confusion - 16/11/2009

There has been a 33 percent escalation in intellectual property disputes launched in the High Court during 2008. Organisations bringing such actions are not motivated by the possibility of winning damages against the infringing business but a desire to halt the violation as soon as possible and prevent either confusion over brands or the commandeering and exploitation of their unique idea. Businesses have to protect their market share at all costs and intellectual property matters tend to reach the courts before other matters to enable the wronged party to get a speedy result to minimise any damage to reputation or revenue.

Some commentators are beginning to question whether certain words, concepts or scientific principles should be permitted to be copyrighted and "belong" to a person or organisation. Ali Hewson's (Bono's wife) recent tussle with Stella McCartney over the word "NUDE" has raised the question of how anyone was allowed to lay claim to the word "NUDE" in the first place. Ali's company Nude Brands Limited (NBL) holds a European Community Trademark over the word in capital letters and she sought an emergency injunction to prevent the launch of the perfume "STELLANUDE" of which £4.1 million worth of perfume had already been manufactured. The injunction was not granted as the judge was not convinced that there would be sufficient brand confusion to justify the hold up to the launch as to do so would cause considerable financial damage to Stella McCartney Ltd. A full trial is expected.

A similar situation appears to be playing out in the Porsche versus Crocs battle. It would seem, to put it mildly, even less likely to be brand confusion between these two brands! Porsche objects to the "Cayman" aspect of the branding of Crocs believing there to be an infringement as they have "Cayman" branding on one of their range of cars.

Sometimes people change their minds. The mathematician Sir Roger Penrose, an Oxford professor, had created an aperiodic tiling pattern for fun (aperiodically is an area of mathematics that is beyond the calculation powers of computers, all the calculations have to be done the hard way) and the resulting unrepeating pattern, previously thought to be a scientific impossibility, is known as the Penrose Tilings. Fortunately once he had demonstrated that is was possible to create such a pattern he had it copyrighted.

The professor was more than miffed when sharp eyed Lady Penrose returned from the supermarket brandishing Kleenex toilet rolls embossed with his unrepeating pattern. He promptly sued Kleenex winning a satisfactory out of court settlement. This, however, was the same Sir Roger Penrose who, when prominent scientists copyrighted two large prime numbers, commented somewhat resentfully that science was for all.

It is difficult to see at this stage how there can be change as it may be seen as unfair to restrict branding. No-one would like to see an individual or a business lose out on an opportunity to exploit an original concept that they have invented or developed especially if the brand has been hi-jacked by another company. Judges are increasingly asked to make decisions on the likelihood of the public confusing brands that have no relation to each other, after all most people can tell a car from a pair of plastic shoes.

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