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Sunday, 26 June 2011

"You’re So Vain; You Probably Think This Plate is about You"

ImageBY-NC-SA coolmallu 
The IPKat is thrilled to have persuaded his friend and fellow-blogger Aurelia J. Schultz to metamorphose a brief Tweet into a fully-fledged blog post for him to host. It's all about that splendid phenomenon, the customised motor car licence plate.  Writes Aurelia:
"There’s been a whole lot of hullabaloo lately as trade mark owners brace themselves for the onslaught of infringements expected with new top-level-domains.  But it’s not just the information superhighway where trade mark owners need to watch; they might want to take a look around on the paved highway too.
Texas has found a new way to make money.  People, well Americans at least, love to showcase their individuality.  And with over 100 hours a year spent driving, what better place to showcase your individuality than on your very own specially-for-you licence plate?  These licence plates, called vanity plates, usually are available for a small additional fee through the state department of motor vehicles when you register your car.  You submit your first few choices and hope that someone else hasn’t already taken “ILUVTM”.  Texas, however, is doing things a little differently, exploiting the market, and so far that exploitation has brought in some big bucks.  But, should the bucks really go to Texas? 
Texas is auctioning of highly sought after plates.  Rather than a small fee and the hope that you’re first, you can secure the licence plates of dream to showcase your individuality by out-bidding every other individual who wants to identify themselves the exact same way.  The Wall Street Journal highlights some commonly-desired plates, such as single digit numbers and AMERICA.  But the most interesting plates mentioned, fetching $7,500 and $15,000, were not numbers or places.  They were trade marks.  
“FERRARI”, just the word on a licence plate, went for $15,000 in Texas.  “PORSCHE” sold for $7,500.  Both (arguably) well-known trade marks related to cars, one has to wonder if the companies should have some say, or some piece, of what’s going on here.  (One also wonders whether Texas requires that the FERRARI plate only go on a FERRARI.  Perhaps the threat of society laughing at your FERRARI licence plate on a ’72 Pinto takes care of that.) 
It would be hard to find trade mark infringement here since no one is going to confuse a licence plate for a car, or think that a car is a Porsche just because the licence plate says PORSCHE.  And people know that licence plates are produced by the state, usually by the prisons, and not by car companies.  There’s also no unfair competition here as the licence plate is not competing with the actual car.  Dilution would be hard to show since there can be at most 50 licence plates with the TM, maybe 500 if there’s enough room for a digit (Note: the author does not know of any states that allow more than 7 spaces on a licence plate.)
Texas does seem, however, to be unfairly gaining a hefty amount of money thanks to the strengths of these brands.  Shouldn’t they be sharing that large pot?"
Thoughts, anyone?

8 comments:

Anonymous said...

Clearly, what we need is a WIPO Automobile License Mediation & Arbitration Review Tribunal (“WALMART”)

Anonymous said...

Creating meaningful words with the UK numberplate scheme is much more difficult, although I note that PA55 OFF is potentially available for £2,095 here: http://www.bossreg.com/plates/detail.html?plate=PA55OFF

My favourite personalised numberplate, which I saw on a 4x4 on an English motorway, was B19 GAY.

Tamara Quinn said...

Position in UK It's hard to see any serious risk for individuals in their own right, but the position of vendors is different. It's use of a sign identical to the registered mark in relation to identical goods, so confusion/dilution is irrelevant. And whilst it's not use in the course of trade for a private individual using them for his/her private car, it possibly is for the issuing authority or dealer. And 11(2)(b) may not help - I'm thinking football scarves.

Anonymous said...

One has many fond recollections of the movie “Ten”, including the memories of Bo Derek. However, IPKat followers should not forget Dudley Moore’s (the composer’s) Bentley license plate “ASCAP”.

Filemot said...

In the UK section 10(5) says
A person who applies a registered trade mark to material intended to be used for labelling or
packaging goods, as a business paper, or for advertising goods or services, shall be treated as a
party to any use of the material which infringes the registered trade mark if when he applied the
mark he knew or had reason to believe that the application of the mark was not duly authorised
by the proprietor or a licensee.

So if DVLC get the same idea and a licence plate is for labelling a car..and the owner then uses his car in the course of trade ..perhaps selling it there is a cause of action.

Its undignified for states to run such schemes when they are responsible for state trademark protection - hard times or not. However would you want to waste brand enforcement dollars on an action against the state given the very limited damage that can be done by a one-off offence.

teemacs said...

To take up Tamara's point on "use in the course of trade", given that any individual licensing authority will be able to issue only one, say, FERRARI plate, can this truly be considered "use in the course of trade"? The other thing is that the vendor is not selling a trademarked article, but an article that happens to bear a particular name, which may be a trade mark. And, as the Kat originally said, the possibility of deception or confusion, or of riding on the reputation of the original mark, seems to em to approximate closely to zero.

Anonymous said...

not sure I agree - if it were not for the fact that they are riding on the reputation then these plates would have no value

Anonymous said...

In the 1970's you could often see limousines with registrations TWA 1, TWA 2 etc. in the vicinity of London Heathrow airport. The Post Office used to have registrations in the series GPO XXX for their London-based delivery vans.

A local emergency gas fitter's van has GA51EAK.

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