Lycra polyester-polyurethane copolymer) was also noted.
Nicola next addressed the culture of copying. There's a trickle-down from haute couture to High Street manufacture and consumption (there's also the effect of trickle-up). There is no evidence that mass copying causes any loss to the high fashion sector, at least where there is a reasonable time lag between catwalk and copycatting. Fashions come in cycles, as do colours, and the existence of public domain is vital in the maintenance of this cyclical pattern.
In terms of status, this is a zero-sum game: money spent on status is either spent on legitimate products than on counterfeits. And more money is spent by people who don't have status and crave it than by people who already have it, which favours the counterfeits. Where counterfeiting is extreme, it can prompt greater innovation by manufacturers of original goods which attempt to create a distance between themselves and their copiers.
Stuart Baran, who gave a round-up of some recent trade mark and passing off cases. Rather than do a race through the cases, his approach was to pick out a small number of cases which were either misrepresented and misunderstood or which have not been given much attention -- but first came an appraisal of the framework of the relevant law, starting with the attempt to rewrite the law relating to goodwill and reputation in the Starbucks v Sky litigation [noted by David Brophy in the IPKat here]. This attempt failed: essentially the UK Supreme Court affirmed that goodwill and reputation on the part of foreign consumers count for nothing when suing to protect that goodwill, though the claimant doesn't need to have a place of business in the UK, just to have customers there.
|Not Moroccanoil, it seems|
The chocolate wars came next, with Cadburys' colour purple [noted here] and the Kit Kat chocolate biscuit shape [see CJEU ruling here] being two types of non-traditional mark. The basic principle in passing off, and indeed in opposing trade mark registrations on the basis that use of the applied-for mark would constitute passing off, should be that of "crooks lose": this doesn't require OHIM Boards of Appeal to go trawling the internet for evidence of misuse of marks, but it does require them to pay attention to evidence that has been put before them, as the Master Cola case indicates.
[on which see the IPKat here]. Basically, the courts have to adopt a broad-brush approach, awarding only those profits that were specifically derived from the infringement itself -- and not recouping licence royalties since they are not damage caused by passing off.