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Friday, 10 July 2009

Friday fillers

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Two people whose comments on intellectual property have been very much in the news this week are the Pirate Party's sole Member of the European Parliament Christian Engstrom, whose article in the Financial Times has been much commented on. Another Christian in the news was the world's most high-profile Christian, none other than the Pope himself. His Holiness whose latest encyclical, Caritas in veritate, states, at para 22:
"Corruption and illegality are unfortunately evident in the conduct of the economic and political class in rich countries, both old and new, as well as in poor ones. Among those who sometimes fail to respect the human rights of workers are large multinational companies as well as local producers. International aid has often been diverted from its proper ends, through irresponsible actions both within the chain of donors and within that of the beneficiaries. Similarly, in the context of immaterial or cultural causes of development and underdevelopment, we find these same patterns of responsibility reproduced. On the part of rich countries there is excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property, especially in the field of health care".
The Kat notes that the Pope and the politician each espouse the moral high ground in order to dampen the ardour of those who create the wealth to which they don't aspire. Merpel's feeling a bit despondent since she couldn't find the Latin version, of which the English is presumably a pale translation. Quemadmodum dicere 'unduly rigid assertion of the right to intellectual property' in lingua latina, pensit catta bellissima ... Tufty adds his thanks to all the readers of this blog who sent in a link, either enriched by their comments or without them.


Unlike modern celebrities, who appear to be most easily recognised when unwrapped, even famous confectionery products will generally pass unknown if they stay within their packaging. This at least is the conclusion one can draw from Case T-28/08, Mars v OHIM, in which the Court of First Instance of the European Communities confirmed that its Community trade mark for the three-dimensional shape of its Bounty bar was invalidly registered (see commentary on this decision here). This decision was however picked up by the press and turned out to have been spotted by nearly all 8,000 of the IPKat's weekday readers. The thing the IPKat liked best about this decision is the contrast between the commonplace nature of the Bounty shape and the grandiloquence of the verbosity in which that commonplace nature is framed by the Court:
"31 ... as regards the allegedly distinctive characteristics of the shape in question, ... an elongated shape is almost intrinsic to a chocolate bar and does not therefore significantly depart from the norm and customs of the relevant sector. Furthermore, the word ‘bar’ itself suggests that the shape of the product it describes is elongated. It is a shape which comes naturally to the mind of the consumer of mass consumption goods such as the goods concerned ...

32 Secondly, the applicant’s argument that ‘applying rounded ends to an elongated rectangular chocolate bar is in itself unusual in the sector’ must also be rejected. ... many chocolate bars available on the market display that combination of elements. Furthermore, the applicant itself admitted in the application and at the hearing that there are other chocolate bars on the market which have a shape similar to that of the mark applied for. The applicant has not however shown in what respect those other goods are merely copies of the mark applied for in the present case.

33 Lastly, as regards the three chevrons on the top of the shape at issue, ... the Board of Appeal was correct to find ... that the average consumer of the category of goods concerned will perceive those chevrons, at the most, as decorative elements and not as a sign indicating the commercial origin of the product. The applicant has not established that the relevant consumer would pay particular attention to that characteristic or to the rounded ends to the point of perceiving them as an indication of the commercial origin of the product concerned. ... the end user will usually pay more attention to the label on the product or its packaging and the name, image or graphic design displayed thereon than simply to the shape of the product. Furthermore, as the product in question is sold in opaque packaging the consumer will generally see its shape only after having removed that packaging".
In other words, bars are bar-shaped and this is often the case with chocolate bars. The word "bar" makes people think of a bar. Other bars also look like bars, and some even have rounded corners. People who eat them don't study the top to see if there's a pattern on it and, if they do, they think it's decoration. Oh, and most people choose one bar over another because they read the label or identify the wrapper.


Secular Citizen brings news that the Hindu goddess Lakshmi has been converted into a brand ambassador for Burger King. Unsurprisingly there have been protests.

Right: another 'Texan Whopper', guaranteed to affront no-one but the vegetarian lobby

According to The Telegraph,
"The 'Texican Whopper' is an affront to Hindu sensitivities in its own right – it includes an all-beef patty, a beef chilli-con-carne slice, egg-based Cajun mayonnaise, all forbidden by strict Hindus. Some devotees would even be offended by the inclusion of onions which they believe inflame passions. But it is the depiction of Lakshmi which has provoked widespread anger with its suggestion that a Hindu deity eats beef".
The IPKat wonders what is in worse taste: this tactless depiction or the burger itself. He is however mollified by the fact that he has learned a little about Cajun mayonnaise, a product of which he was previously ignorant.


Many readers have sent the IPKat this link to the eBay petition for the European Commission to intervene to stop brand owners [actually or allegedly] restricting the online sale of branded goods -- some to urge him to sign it, others to press him to condemn it. To his shame, this member of the IPKat team has to confess that he has never either bought or sold any item via eBay, so he can't speak from direct experience. However, he believes that, with e-sales as with recorded music, the genie is out of the bottle and is unlikely to be squeezed back into it without a fight. If brand owners -- who have a lot of other things to worry about including competition with each other in their own sectors -- can't cooperate to create an entity of their own to compete effectively with eBay, they can expect little support from a European Commission that places cheap prices and consumer choice so far above whatever they may be able to offer.

4 comments:

Anonymous said...

I think that Merpel will find that the everyday language of the Roman Catholic Church is Italian not Latin - the Italian version of the encyclical is at:

http://www.vatican.va/holy_father/benedict_xvi/encyclicals/documents/hf_ben-xvi_enc_20090629_caritas-in-veritate_it.html

Dr. Michael Factor said...

Feeling, mutinous, I'd like to point out that there are actually three Christians in the news:

Christian Engstrom;
the Pope, and
Fletcher Christian, the patron saint of chocolate bar shaped chocolate bars.

Anonymous said...

"... even famous confectionery products will generally pass unknown if they stay within their packaging."

Is this not back to front? If they stay within the packaging it's clear they are Bounties, it's when you look at the unwrapped bar that you can't tell, because (the court has held that) all chocolate bars are roughly that shape.

Jeremy said...

Michael: feeling a bit mutinous myself, I should respectfully point out that it wasn't Fletcher Christian who was in the news but the Bounty.

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