1 Dealing with fakes, French-style
The Daily Telegraph reports this morning on the activities of the French customs authorities, who are pulling motorists in as they cross the border from Italy and fining them on the spot if they do not immediately yield the counterfeit products they've bought in the popular street market in Ventimiglia. The article specifically cites seizure of HERMES and LOUIS VUITTON fakes. It quotes Christine Laï, the director-general of the manufacturers' association Unifab:
"The genuine item would have cost 100 times as much. Not many people go to the Ventimiglia market intending to bring back fine Italian charcuterie. They know what they're doing. The problem of counterfeit goods is enormous. Every other French business is a victim, whatever they make, from designer clothes to Champagne, and globally we are talking about $400-500 billion a year".Indeed, French customs chiefs are reported as saying that the number of articles seized rocketed from under two million in 2003 to nearly 3,500,000 in 2004. China - including Hong Kong - South Korea, Thailand and Vietnam account for 72 per cent of those confiscated in France.
The IPKat would love to know what criteria the customs officers employ for determining whether goods are genuine or fake, knowing how difficult he sometimes finds it to tell them apart. Is is it just obviously unused goods with labels showing knockdown prices? Or failure to display a receipt from a recognised retailer? Or what? Merpel admires the French for their strong support of IP owners but wonders: is it just French brands that are protected, or does the benefit of this procedure apply to English, German, Dutch, American and other brands?
Left: more French steps to repel unwanted fakes
2 Latest IPQ
Issue 3 of Sweet & Maxwell's Intellectual Property Quarterly for 2005 is now out. As ever, it contains plenty to think about. In this issue there's
* "Music and Creativity as Perceived by Copyright Law", by Andreas Rahmatian. Beware: this man has a first degree in Musicology and History from the University of Vienna, so you'd better brush up your Beethoven before attempting this one;
* The published version of a conference paper given in January 2004 by the IPKat's co-blogmeisters on "Going Down in History: Does History Have Anything to Offer Today's Intellectual Property Lawyer?";
* " 'Policy Style' Reasoning at the Indian Patent Office" by Oxford Intellectual Property Research Centre-based Shamnad Basheer, looking at the point at which law and politics meet in the wake of India's recent major legislative amendments of the patent system.
3 The glittering prizesThe Australian Copyright Council has announced the GC O'Donnell essay prize of $3,500 (that's Australian dollars) for the author of an essay displaying
The competition is open to any interested persons, including authors, lawyers and students. Essays must be submitted by 14 October. Get writing now - and good luck!"original thinking on a topic of the author’s choice regarding copyright and the protection of the interests of authors."
QUAINT FRENCH CUSTOMS; A TIME TO READ; A TIME TO WRITE
![QUAINT FRENCH CUSTOMS; A TIME TO READ; A TIME TO WRITE]()
Reviewed by Jeremy
on
Monday, August 22, 2005
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I think the quote from the Unifab lady highlights something important here - if consumers don't expect to obtain genuine products from markets then they're not confused. If their not confused then what's the justification for the law intervening? One could say identical marks/identical goods, but TRIPs says that the reason for providing automatic protection in those circumstances is because confusion is assumed.
ReplyDeleteI think the real problem here is as much a design problem as a trade mark problem - the design of the goods in question will be diluted (I use the word advisedly) in the sense that it will not longer be unique to its originator, which will impact negatively on its style quotient. Rant over :-)
I disagree. In the first place, confusion of the consumer at the point of sale isn't the only type of confusion. Post-sale confusion also exists. Secondly, the TRIPs prseumption is to save the trade mark owner the need to bring evidence of confusion, not to conjure some mythical confusion into existence. Thirdly, you seem to think that the only justification of trade mark law is protection of the consumer against confusion, whereas this is clearly not the case as Council Dir.89/104, Art.5(2) suggests. Fourthly there may not be a design issue at all, as where goods are made to a "classic" design that all may copy, but some make it well and with good materials while others make it poorly and with bad materials.
ReplyDeleteI'll take your points in turn
ReplyDelete1. Agreed, it doesn take into account post-sale confusion, but this is controversial anyway.
2. Exactly right. What I'm arguing against is magicing into existence confusion where consumers know that what they're getting is counterfeit.
3. Erm, Art.5(2) is dilution protection, which is exactly what I'm talking about. If you'll notice I said that the problem was as much a design problem as a tm problem - i.e. I haven't precluded it from being a tm problem.
4. I don't what to cast doubt upon your no doubt encylopedic knowledge of womens' handbags but I think that a lot of the problems centre around designs which are not classic but are instead this season's trend and/or have been identified with a particular designer.
My turn, I think.
ReplyDeleteRe 1 and 2. I'm not sure which side, or sides, you're taking, or who is magicking confusion into existence. Anyway, in our European law it's not confusion but a likelihood of confusion that must be shown, a concept that hardly excludes post-sale confusion.
Re 3: you said " If their (sic) not confused then what's the justification for the law intervening?".
Re 4: i never pretended to be an expert on handbags, but I believe that trade marks are applied to other goods as well: ties, belts, scarves, pens, jewellery, for example, where design may not be the "real" problem.
Are you an expert in jewellery? If so, I submit to your sartorial taste :-D
ReplyDeleteFirstly, why is Ventimiglia market exempt from EU TM law? If it isn't, surely this should be dealt with by the Italians at the point of sale and not left for the French at the border.
ReplyDeleteSecondly, I'm largely with Jeremy - since if there's no likelyhood of confusion, there's little point in buying a direct copy of a tm'd bag. That is precisely what the buyer is after. The aim is either to confuse the "observer" in cases of personal use; or to rely on it if the plan is to sell the things on.
Finally, I'm with Ilanah re. jewellery; where design rights are surely at least as valuable as any tm rights. For the avoidance of doubt, I do not claim any expertise in that area! ;-)
Ever since I heard about the harsh practice of French customs, I was wondering about its legal base: It cannot be the infringement of a registered trade mark, can it? Article 5 TM Directive 89/104/EEC reads: "(...) prevent all third parties not having his consent from using in the course of trade: (...)". Surely, the importation of a fake hand bag by a tourist for his/her own personal use cannot be considered "in the course of trade"?
ReplyDeleteFrench public policy obviously mandates a higher degree of protection for French industry. Their own citizens can't complain, but I would have thought that Mr Allott could invoke Article 28 EC as interpreted in case C-23/99, where France was condemned for stopping the (commercial) transhipment of spare parts for French cars legally manufactured in Spain with a view to their legal sale in Italy, even though they were deemed counterfeit in France.
ReplyDeleteOr does the A-CG view that any consumer buying a counterfeit product is pouring money into the pockets of organised crime and so equally guilty give sufficient justification under art 30?
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