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Tuesday, 17 February 2009

To cap it all!


Hastings Guise (Field Fisher Waterhouse) has drawn the IPKat's attention to this item on Springwise concerning an enterprising business called Lucky Seven. This company makes custom caps that bear the logos of fictional companies featured in cult films and television shows. According to this article,
"Lucky Seven's caps are all made to order. On the company’s website, customers are invited to design their own caps by choosing either a mesh or army style cap, a colour combination from an extensive palate, style of captain's laurels, and the preferred fictional company's crest. Want to declare your loyalty to the promise and opportunity of Blade Runner's Off World Colonies? Done. Prefer people to think you shot J.R. because of your Ewing Oil cap? No problem. Every order is shipped in a Lucky Seven hat box, and caps are priced at GBP 30.

The company has cleverly focused on a very narrow niche—not just customized caps, or accessories featured in movies, but caps with logos of fictional yet memorable entities. Immediately recognizable only to likeminded fans, a Lucky Seven cap is both a conversation starter and an insider's status symbol. Which is the kind of added value that can help a small business grow. One to learn from!"
The IPKat notes that this item immediately sparks off interesting issues concerning property in, and control of, fictional brands, corporations and the like. This obviously calls for a learned article in a learned journal: will anyone volunteer to write it?  Merpel says she's waiting for caps that feature fictional Kats -- but would anyone want to be seen wearing an IPKap?

4 comments:

Simon Bradshaw said...

An interesting question! I'm not sure I have the time to write an article right now, but my initial thoughts are that it depends on the status of the items in question.

In Lucasfilm v Ainsworth, Mann J tried to clear up the position of film props and costumes, and concluded that they are neither sculptures nor works of artistic craftsmanship, and so are protected by design rather than copyright. But patches and logos are clearly graphical designs that should be protected by copyright, although the ownership will (as discussed in the case cited) depend on the nature of the agreement between the artist and the film studio.

So, I suspect that there is copyright infringement, although it might be that the rightsholder, even if aware, considers it too minimal to be worth pursuing. Equally, in the UK an action for passing off might arise, although the patches are so specialist in interest that it might be hard to establish significant goodwill.

Hubert said...

I guess in civil law jurisdictions this would be considered a copyright infringment.

Anonymous said...

Merpel surely should already be aware of the Hello Kitty line of merchandise, of which officially-licensed caps, together with bootleg equivalents, are undoubtably available...

Rohan Higgins said...

The notion of fictional brands has been considered by Australian courts. In the late 90s, a beer company began selling beer under the brand Duff, and were promptly sued by 20th Century Fox as owners of the Simpsons. See Twentieth Century Fox Film Corporation v South Australian Brewing Co Ltd(1996) 66 FCR 451.

In that case, the court relied on passing off and the Australian statutory cause of action for misleading and deceptive conduct to find in favour of Fox. It does not appear from the judgment that any copyright argument was pursued.

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