LV Has No Love for Google

Google gets no love from the luxury retailer Louis Vuitton. It took the world's largest search engine to court in Paris back in 2003. Louis Vuitton claims that Google was infringing on its trademark rights when it sold certain sponsored links with key search words such as "vuitton". Louis Vuitton claims that Google does not have the right to sell trademark protected names to advertisers when those trademark protected words are used in a key word search.

Google appealed a Parisian high court decision in favor of Louis Vuitton this past Tuesday in the highest EU Court. Here is an excerpt from Business Report:

"'Google makes money not by reason of the nature of the keyword but by someone clicking on the keyword,' Google lawyer Alexandra Neri told a 15-judge panel of the European Court of Justice in Luxembourg.

The case is the EU tribunal's first on whether companies in the 27-nation region can block search engines from using trademarked brand names to trigger search results. Internet ads tied to search results generate most of Google's revenue."

The outcome of this case is expected to be announced in 2010. It is considered to be a pivotal case for the new expanding area of e-commerce.

Does Counterfeiting Create "Bad Seeds"?

It seems that on top of all of the other evils that counterfeiting produces, it also creates a tendency among its consumers to be less moral. According to a blog written by the New York Times, a study has been done about the moral implications of counterfeit consumption. The study found that individuals who were told that they were wearing counterfeit sunglasses were more likely to cheat on tests than individuals who were told that they were wearing real sunglasses.

From NYT post:

“The effect on morality, people don’t anticipate,” said Prof. Dan Ariely, the author of “Predictably Irrational,” who conducted the studies. “We asked them if wearing fakes would get people to cheat more, they didn’t think it has an effect.”

It seems that most consumers do not even realize the impact of their choices, but there is a subconscious effect. Consumers tend to cheat more when they realize that their peers are cheating. Consumers also tend to purchase more counterfeits when they realize their peers are doing it as well.

This study also asked consumers how authentic they would feel with one, two or three counterfeit items. The researchers found that once the consumer wore at least one counterfeit item, it was easier to wear two or three. This indicates that once a consumer starts to wear counterfeit items, it is easier to keep buying counterfeits than if they never started at all.

To read more about this study, the moral effects of counterfeits, and the impact of branding, check out the NYT post here:

http://cityroom.blogs.nytimes.com/2009/03/16/the-moral-costs-of-counterfeiting/

Glaceau VitaminWater Boasts of IP Success

Glaceau Vitamin Water has taken the time to write a very interesting piece about the efforts of its in house legal department in order to protect Glaceau's intellectual property rights (trademark rights in particular). The company has a small legal department that is comprised of general corporate counsel Mr. Joseph DiSalvo, associate general counsel Brian Howard, part time IP attorney and a paralegal on staff.

The piece highlights something that seems to be very important in this ever competitive economy: Intellectual property rights are everything right now:

"There's nothing more important to this company than its intellectual property," says general counsel Joseph DiSalvo. "Nothing." This is something that Coca Cola Inc. has to think about (see previous post). Apparently the devotees of sham glam will tell you that IP rights are not necessarily important.

I agree with Mr. DiSalvo. If you look at one of the leading competitors for the vitamin enhanced water sector (SoBe's Life Water which is owned by Pepsi Co), it definitely looks like Glaceau has a reason to litigate for trademark infringement, trade dress, and also trademark dilution. Hence the three different incarnations. The first bottle by SoBe was found to infringe on Glaceau's trademark, the second bottle was too confusing (and still contained contrasting color fonts with the words Life/Water which was too similar to Glaceau's Vitamin Water), and the third is the final incarnation. Can you say sham glam?

You can read the entire article (which I feel sounds like a press release) here:

http://www.law.com/jsp/ihc/PubArticleIHC.jsp?id=1202428379193&pos=ataglance

New Term of the Weak: Sham Glam?

After reading an article posted by Reuters, I was introduced to a new term called "sham glam". This term has been introduced by Chinese consumers who say that they are over the brand name/luxury market. They are proud embracers of "sham glam". "Sham glam" is used to describe a consumer who uses fake products for their own kitchsy appeal. Another term to watch for is "shanzai".

Well I guess if you don't mind "sham glam", then you would not mind drinking soda from these bottles which are eerily familiar to Fanta, Coca Cola and Sprite which are all part of the Coca Cola Inc umbrella. Would you drink a bottle of Smile? Sham glam devotees would say yes!

Chinese consumers are saying that as the recession affects more and more of them, they are unable to afford the price points of popular brand name products. While many of the sham glam devotees are aware of the original products that may have inspired their sham glam brands, this is not a case of branding confusion: "It's an imitation, so it's not a fake and it's not infringing copyright. Maybe it lacks innovation but it's not really bad," said Beijing student Cui Lai.

How do foreign companies feel about their intellectual property rights possibly being violated by sham glam copiers? "The United States and European Union have expressed their displeasure with Beijing numerous times over the problem, and it has proven a major irritant in trade and political ties.China says it is trying hard to tackle piracy, but that as it is a developing country it may take many years to root out the problem.

Yet the growing popularity of "shanzhai" products in China could prove an extra headache for the original and mostly foreign brands already struggling to enforce their intellectual property in the world's third-largest economy.

"It is possible that these lookalikes, these sort of brand upstarts, can actually become quite famous locally and then the case would be considerably more difficult," said Scott Palmer of Baker & McKenzie, who specializes in anti-piracy law in China."

You can read the whole Reuters article about sham glam here: http://www.reuters.com/article/lifestyleMolt/idUSTRE5151FW20090206?pageNumber=1&virtualBrandChannel=0

Giorgio Armani Weighs in On Counterfeits

Time Magazine collected ten questions from readers around the world to ask the designer Giorgio Armani.

Of the ten questions asked, two of them dealt with Intellectual Property rights:

Q: Does the Armani brand suffer a lot of damage because of counterfeit products? David Remenyik, BUDAPEST

A: Personally, I think counterfeit products are good because their existence shows that we create something people want to copy. Professionally, it causes big problems because it creates products with your name on them that are not controlled by you.

Q: You recently accused Dolce & Gabbana of copying one of your designs. Do you plan to pursue this claim in court? Alice Goodman, SYDNEY

A: No. This happened at the end of a small press conference. One of my colleagues brought me a photo of this pair of pants. I said, very nonchalantly, "Look--great designers like Dolce & Gabbana copy us!" I was joking, it was not serious, but naturally the press picked up on it and splashed it all over the headlines.

If you would like to read all ten questions and Mr. Armani's answers you can find the whole interview here: http://www.time.com/time/magazine/article/0,9171,1879189,00.html

If you are interested in the pants (and the story) referenced in question #2 in this post, check it out here: http://www.gaywired.com/Article.cfm?ID=21382 Dolce and Gabbana had some fighting words which included this quote about copying from Picasso: "As Picasso used to say, copying from others is inevitable, but copying from oneself leads to sterility," they said.

Ouch.

Harper's Bazaar Tells the Recessionista: Fakes Are Never In Fashion

WABC-NY posted an interesting piece about the rise in counterfeit bag sales in New York City. I guess my previous hypothesis that there will be a decline in fake handbag sales was wrong. It seems that as the economy continues to flounder, more women are interested in buying a counterfeit purse than ever.

Valerie Salembier of Harper's Bazaar contributed to the segment. She said she hoped that her readers understood the negative consequences of purchasing counterfeit fashion items: "Our readers should know that if they buy a counterfeit anything, their money is going to bad purposes."

Check out the segment here:

http://abclocal.go.com/wabc/story?section=news/local&id=6641161

Associated Press Fights Over Iconic Obama Image

The left photo is a photo taken by Mannie Garcia for Associated Press. The right is the iconic graphic image created by Shepard Fairey for the Obama.

Associated Press claims that the artwork created by Fairey infringes on the copyright held by Associated Press with the photo.

Mr. Fairey has acknowledged in the past that the artwork that he created was based on the photograph taken by Garcia in a press conference in April 2006.

The AP says it owns the copyright, and wants credit and compensation. Fairey disagrees.

"The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission," the AP's director of media relations, Paul Colford, said in a statement.

"AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey's attorney and are in discussions. We hope for an amicable solution."
"We believe fair use protects Shepard's right to do what he did here," says Fairey's attorney,

Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School. "It wouldn't be appropriate to comment beyond that at this time because we are in discussions about this with the AP." (Yahoo! News)

What exactly is fair use you might ask? According to the U.S. Copyright Office it is:

Fair Use
One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code).

One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;the nature of the copyrighted work;amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.

The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

It will remain to be seen if AP will prevail in its lawsuit.