Les Wednesday Whimsies

Jeremy put me in charge of this week’s Whimsies, and I shamelessly take advantage of it to promote French products. Here it goes...

The World is My [Counterfeited French] Oyster

The Gillardeau company, a French oyster producer based in the Marennes-Oléron region, which is famous for oysters cultivation, will start to engrave its logo on each of the oyster it produces to fight counterfeiting. The company has also production sites in Normandy, Ireland, Scotland, England and Portugal. Counterfeited Gillardeau oysters are reportedly sold in China. [Do cats like oysters?]

The logo will be engraved on each oyster’s shell using a special laser. The article quotes the company’s owner explaining  that such marking is not very deep and thus would not hurt the oyster, while being resistant to sea water, unlike a microchip, which was the anti-counterfeiting solution originally envisaged.
Even Foodstuff Could Be Counterfeited 

The article also mentions that the Gillardeau company chose not to apply to the French Label Rouge, or to the European Union Indication Géographique Protégée, for protected geographical indication ,or PGI, and that it instead follows its own specifications.

According to article R.641-7of the French Rural and Maritime Fishing Code, the Label Rougeis the registered trademark of the Minister for Agriculture. The National Institute for Origin and Quality ensures the management and protection. The logo "red label" is affixed to every product, along with the approval number.” Because such label can be taken away at any moment if the quality of the product fails to meet the Label Rouge standards  or if the products are not sold under this label for five years of more, it is regarded by French consumers as a mark of a very fine product.

The PGI is a European Union indication of origin which is regulated by Council Regulation 510/2006 of March 20, 2006 on the protection of geographical indications and designations of origin for agricultural products and food stuffs. [I just love that expression, “foodstuffs.”]

Lindsay Lohan, Kat Episode Number 3

I have been following the suit that actress Lindsay Lohan filed against Take-Two Interactive, the publisher of the video game Grand Theft Auto V. She claims infringement of her New York right of publicity law [see here and here].

She has now filed an Amended Complaint where she alleges that Take-Two Interactive used her likeness “on websites, t-shirts, posters, billboard advertising, coffee mugs, and other merchandise.” Indeed, such use of Lindsay Lohan’s likeness would run afoul of New York’s right of publicity law, which forbids using the name, portrait or picture of a living person for trade or advertising without the person’s written consent. However, Ms. Lohan still needs to prove that Defendants actually used HER likeness and not a mish-mash of some other Hollywood blonde starlets, or a cliché of what a Hollywood starlet should look like.

The character which may represent Plaintiff wears a white tee-shirt and the Amended Complaint argues at paragraph 31 that Defendants “prominently and purposely used suggestive references to the Plaintiff Lindsay Lohan, by prominently displaying the letter “L” and a skull-shaped letter “O”, on the White T-shirt of the image in the foreground of the shirt overtly and subliminally suggesting “Lo” for Lohan.” It remains to be seen if New York law prohibits subliminal suggestion.

The Amended Complaint also argues that Lindsay Lohan wears her fedora hat in a particular way, which has been copied by Defendants for the video-game character. The Amended Complaint provides a wealth of images from the video game and argues that Defendants “knowingly and purposefully used Plaintiff’s face, hair and sunglasses… that evoke the Plaintiff’s person and established that the image… is clearly and unequivocally Lindsay Lohan.” I am not sure how an image “evoking” something can also be said to be clear and unequivocal, and so I am looking forward to read Defendant’s response to the Amended Complaint.

Student Competition to Encourage Practical Use of IP in Business Ideas Launched Today by UK IPO

The Studentsh IP Enterprise Awards was launched today by the U.K. Intellectual Property Office. It is open to all UK Higher Education Institutions (HEIs). Higher Education (HE) students will be working in collaboration with HEIs and/or businesses.
Student Cat Hard at Work 

Baroness Neville-Rolfe, Minister for Intellectual Property, is quoted as such in the press release:
This new competition will encourage enterprising students and academics to collaborate, so that their ideas for creating and exploiting intellectual property can be turned into reality and business opportunities. This is our chance to spot, support and develop the skills of the people who will be fuelling our future economy.”
The competition will end on December 12, the finalists will be announced in January and the winners in March 2015.


Louis Menand has published an interesting article on copyright on The New Yorker site: Crooner in Rights Spat- Are copyright laws too strict? The article provides an easy to read round up of U.S. copyright laws, and asks whether the digital era will lead to changes in copyright. 

I get a lot of my IP-related information on Twitter, and I would like to share an account I like, @DisCo_Project, which is the Twitter account of DisCo, “the Disruptive Competition Project: a project to promote disruptive innovation and competition. Breaking News on Breaking Stuff.” Always interesting to read. 

Au Revoir for now! 
Les Wednesday Whimsies Les Wednesday Whimsies Reviewed by Marie-Andree Weiss on Wednesday, October 15, 2014 Rating: 5


  1. thanks for this interesting piece of information; for an update regulation 510/2006 has been repealed and replaced by Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs. However the PGI definition remains largely the same.

  2. Studentsh? Shurely some mistake here, unless you subscribe to the notion that the best ideas really can fit on the back of a beer mat.

  3. Marking oysters? I immediately went to my favourite web site (tm) to see what was disclosed in Gillardeau's patent applications. But I could find none -- either such weren't applied for, or aren't published yet, or I did not look in the right place.

    What I did find however could be a source of worry for the ostréiculteur, if he did not perform a FTO clearance search or made appropriate arrangements.

    The University of Vigo was granted patent EP1994830B1 with the following claim 1:

    1. A method for identifying shellfish, characterized in that it comprises the following operating steps: a) Placing the animal (5) to be identified on a suitable support for its dimensions, in a fixed system or in a moving system connected to any position control equipment, b) Focusing at least one laser beam (4) by means of a suitable focusing system (3) on the surface of the shell or of the carapace of the animal (5) to be identified, c) Ablation, surface fusion or decolorization of the area irradiated by the laser beam (4), d) Relative movement between the laser beam (4) and the animal (5) to be identified, to form a mark (6) on the surface of the shell or of the carapace of the animal (5) to be identified.

    According to my cursory laugh and smell tests (brevet SGDG), my hunch is that this claim would withstand scrutiny, and that it cannot be easily circumvented. Unless it could be attacked on novelty (which I doubt), you'd have to build a bulletproof chain of reasoning showing how the skilled person at the priority date would mechanically be induced to mark shellfish with a laser. In any case, the opposition delay before the EPO has expired. Viel Spaß dabei!

    The patent wasn't validated in most member states, but it is however in good standing in France.

    There is also Chinese patent CN102124971, filed by a university in Shangai, that could prove troublesome for that export market.

    From the cover page, the SIPO examiner cited the above Spanish patent as well as other prior art from its EPO wrapper. According to automatic translation obtained from OCR'ed text, the amended and granted claim is rather weak, as it defines the invention in terms of numerical parameters including the shell size, the dimension of the marking, the rearing time for the shellfish, and the laser current (?!?!?) in Amperes. BTW, the markings in the figures remind very much of the Windows operating system logo. Does Microsoft hold any trademarks in classes covering oysters? "Dilution" takes here its true meaning...

    One of the prior art documents cited, US4133294 from 1979 (University of Delaware), suggests marking oysters against theft by putting tetracycline (an antibiotic!!!) in their water, thus rendering them fluorescent.

    The document however proves that there is a need for marking shellfish:

    Industry contracts with suppliers and growers for molluscs. It is not known whether the practice of “bait and switch” is presently a problem. However, as processors become less intimately acquainted with suppliers, the opportunity for breach of faith becomes greater.

    It seems that a processor would be well-advised to protect himself against possible abuse of this sort — e.g., mixing in contaminated oysters with acceptable stocks.


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