Can you protect yourself from brand fetish
Inspiration comes generally in different ways. You read, for example, about parodies, and you understand that parody itself is the best form of existence of such an article.
That's interesting, asks Afanasyev and the publishers for me, who has obtained the rights to the article PARIDING TRADEMARKS: “HANDS OFF THE SAINTS” OR “NEED TO HAVE A SENSITATION OF HUMOR” abundant quotation or not? In reality, we fully share the position of the author, who speaks out against “the transformation of well-known trademarks into inviolable shrines” and we also shout.
A brand-fetishist is a small owner of a trademark who is swollen from his own unearthly significance, which protects him from any encroachments that are not even violations of the law. He practically does not attend reality, but the signals from space motivate him to an eternal battle.
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The author of the original source as domestic brand fetishists gives two examples.
“Gazpromchik on the fire” and “It is prohibited to plump in Sberbara”
Refresh history with Gazprom
Official source
Statements
www.vedomosti.ru/business/articles/2013/03/12/gazpromchik_ne_zazhigat
RBC
www.rbc.ru/newspaper/2013/03/12/56c1ba3e9a7947ac7f7abe08
People's anger
interviwer.livejournal.com/1045281.html
Statements
www.vedomosti.ru/business/articles/2013/03/12/gazpromchik_ne_zazhigat
RBC
www.rbc.ru/newspaper/2013/03/12/56c1ba3e9a7947ac7f7abe08
People's anger
interviwer.livejournal.com/1045281.html
With Sberbank
Was it a violation or not?
According to the author of the article (and we share it) these examples are not about trademark infringement. Few consumers would have thought that Gazprom produces tiles, and the bar opened a bank. It is clear that this is a joke, and not a real trademark violation. But not for the brand fetishist.
Dude, this is, like, a parody. Haha, funny. But (unexpected ass) a parody under the law is the basis only for free use of objects of the copyright (item 3 of item 1274), but not trade marks. Oops.
Quote from the article and the court decision:
Definition of the Supreme Arbitration Court of the Russian Federation of 09.09.2013 N BAC-5861/13 in case No. A40-38278 / 2012-12-166.
Parody is carried out for cultural purposes, and it can be said without exaggeration that this is an important and interesting phenomenon of modern culture.
The panel of judges of the Supreme Arbitration Court, referring one of the cases for review to the Presidium, noted the following important features of parody use: “Parody is a work aimed at creating for the reader (viewer, listener) not only a comic, but also a critical effect due to the intentional repetition of unique features famous works, in a specially modified form.
A parody is always a new work, in which something changes relative to the original work ... It cannot be considered a parody of a work in which some detail is simply changed ... the original (original) work should be in the center of the new, and not be its background or auxiliary tool.
... The more original the parody, the less the weight of other factors, such as: the commercial nature of the new work, the impact on the sales market of the original work, the amount of borrowing from the original work.
It is not enough to simply call the work a parody to get protection from a claim of infringement of exclusive rights; if a work contains a weak parody element and at the same time a large amount of borrowing from the original work, then such borrowing cannot be considered as fair use. At the same time, the essence of parody is in imitation of the original, which should be recognizable, therefore, when creating a parody, borrowing — sometimes even substantial (both in terms of volume and character) —from the original work cannot be excluded.
Processing should be carried out in such a way that there is no confusion of the original and parody works.
... It requires an analysis of the work itself with references to individual elements of this work and the establishment of a comic or critical effect and ways to achieve them. Parody implies the intentional strengthening of the features of the work or performance as a protected object. Achieving this goal is possible, for example, by strengthening, exalting the features themselves or highlighting them and placing them on a different background on which these features are expressed more explicitly or attract the particular attention of the audience. ”
The panel of judges of the Supreme Arbitration Court, referring one of the cases for review to the Presidium, noted the following important features of parody use: “Parody is a work aimed at creating for the reader (viewer, listener) not only a comic, but also a critical effect due to the intentional repetition of unique features famous works, in a specially modified form.
A parody is always a new work, in which something changes relative to the original work ... It cannot be considered a parody of a work in which some detail is simply changed ... the original (original) work should be in the center of the new, and not be its background or auxiliary tool.
... The more original the parody, the less the weight of other factors, such as: the commercial nature of the new work, the impact on the sales market of the original work, the amount of borrowing from the original work.
It is not enough to simply call the work a parody to get protection from a claim of infringement of exclusive rights; if a work contains a weak parody element and at the same time a large amount of borrowing from the original work, then such borrowing cannot be considered as fair use. At the same time, the essence of parody is in imitation of the original, which should be recognizable, therefore, when creating a parody, borrowing — sometimes even substantial (both in terms of volume and character) —from the original work cannot be excluded.
Processing should be carried out in such a way that there is no confusion of the original and parody works.
... It requires an analysis of the work itself with references to individual elements of this work and the establishment of a comic or critical effect and ways to achieve them. Parody implies the intentional strengthening of the features of the work or performance as a protected object. Achieving this goal is possible, for example, by strengthening, exalting the features themselves or highlighting them and placing them on a different background on which these features are expressed more explicitly or attract the particular attention of the audience. ”
Who has not opened the text above - himself evil Pinocchio.
The main question of the day:
Is it possible to extend the rules on the parody of copyright works to the parody of trademarks? Nenuacho?
The author of the original source claims and asks good questions: “ Of course, copyright and trademark rights are different institutions of intellectual property law. But still, what is so special about well-known trademarks in comparison with works that one should not laugh at them? A special circle of subjects worthy of special protection compared to the subjects of copyright (legal entities and individual entrepreneurs)? Commercial purpose of a trademark (individualization of goods)? That, unlike the exclusive right to a work, the right to a trademark can be protected forever? These differences are hardly enough to turn well-known trademarks into inviolable shrines, teasing them can be costly for jokers . ” Golden, this is because the bigger the company, the more it resembles the ministry. And in the ministries sucks with a sense of humor. Vashche I checked.
Specifically, in our affairs, the pranksters even decided not to get involved with the right holders and chose to abandon the use of parody notation (zassali), but the American imitators are bolder and show interesting examples. Sometimes - for my money.
The case of dog biscuits "Dogiva" (admitted violation)
Recognizing that the production of dog biscuits „Dogiva“ violated the rights to the well-known chocolate brand „Godiva“, the court explained: “Once the public believes that there is some connection between chocolate“ GODIVA ”and dog biscuits“ DOGIVA ” What is this connection, according to the public, is that the chocolate maker himself produces dog biscuits, controls their production by another subject or is in some other contractual relationship with this subject "
Garbage bags case: Godzilla vs Bagzilla (no violation)
The court denied the owner of the “Godzilla” trademark a lawsuit against the manufacturer of “monstrously durable” garbage bags called “Bagzilla”, without detecting the likelihood of confusion.
The case of popcorn "Dom Popignon" (there is a violation, since the parody is not strong enough).
The defendant adjusted the release of “shampop” - popcorn in packages resembling champagne bottles with a label identical to the label “Dom Perignon”, but with the words “Dom Popignon”. Survey data was submitted to the court, which indicated that many consumers thought that “shampop” was made with the approval of the manufacturer of Dom Perignon champagne. Based on this, the court concluded that the defendant did not create a strong enough parody to avoid the possibility of confusion.
Insecticide, flowers and Bud beer (no violation, but banned due to the unappetibility of the association)
“Budweiser beer” beer manufacturers have long used the slogan “Where there is life, there is“ Bud ”, and insecticide manufacturers decided to beat the similarities of the words“ Bud ”(beer brand) and“ bug (bug) ”and performed under the advertising slogan“ Where there life ... there's bugs "(" Where life is, there are bugs "). The court ruled in favor of the claimant, relying only on the unappetizing of an association that could damage its trademark. And, conversely, when the florists decided to beat the homonymity of the beer name and the word" bud ", taking advantage of the famous advertising slogan of the manufacturer Willow «This Bud's for You», the court did not immediately discredit «Bud» trademark.
Coca-Cola and Cocaine (there is a parody, but it was forbidden to use it because of its association with drugs)
The respondent created a parody in the form of a poster with the words “Enjoy Cocaine” for the Coca-Cola trademark and the Enjoy Coca Cola advertising slogan. The court forbade the defendant to use a poster with this phrase, stating that, although there is neither the probability of confusion, nor the conduct of cases under an assumed name, the claimant’s trademark will damage associations with drugs.
"Louis Vuitton" against "CHEWY VUITON" (parody, no violation)
Haute Diggity Dog, LLC was engaged in the sale of parody goods for pets, including Chewnel No. 5 "," Jimmy Chew "," DogPerignonn "," Snijfany & Co. "and" Dogior ". The subject of the trademark owner’s claim was a chewing toy for dogs, stylized as a Louis Vuitton handbag and named “CHEWY VUITON”. The court concluded that the designation “CHEWY VUITON” was a parodic character, noting that all the design elements used by the defendant were similar, but not identical to the design elements of the claimant’s product. The court also emphasized that the fame of the claimant’s trademark is an argument in favor of the defendant, since it is easy for consumers to understand that they are dealing with a parody (this is the specificity of trademark parodies cases; in other disputes over trademarks, the controversial designation is known; , is an argument in favor of the plaintiff); the dissimilarity between the goods also strengthened the position of the defendant; the court stated the difference between the distribution channels of the plaintiff’s and the defendant’s products (the defendant’s goods were sold in pet stores, which could not be said of the plaintiff’s goods). The court concluded that there was no violation of the rights of the claimant to the trademark. It is easy to see that the latter case has a lot in common with incidents with Sberbar and Gazpromchik.
Doctrinal explanation of the position of the American courts
Quote from the article:
The American courts based their decisions in the examples cited mainly on the application of trademark dilution legislation.
The trademark erosion doctrine began to take shape in the 1920s, when Frank Schechter introduced the concept of “dilution” in relation to the unauthorized use of a well-known trademark for non-competing products. Initially, the doctrine was met with bayonets, but gradually erosion laws began to appear in some states, and in 1996 the Law on Trademark Erosion (FTDA) was adopted at the federal level and enabled the right holders to seek an injunction against erasing their marks, which is understood decrease in the distinctiveness of known signs, regardless of the presence of competition and the probability of mixing. In 2006, the US Federal Law on Trademark Dilution of Trademarks (Trademark Diligence Revision Act) was enacted to reinforce the concepts of “tarnishment” and “blurring”, both of which denote the misuse of other well-known trademarks. , not necessarily in relation to competing goods and services.
Article 3 of the Law names circumstances that prevent the satisfaction of the claim of the rightholder, in particular, the fair use of the trademark, including parody, criticism, comments regarding the rightholder or its goods (services), as well as non-commercial use. Currently, Kati Assaf notes, the satisfaction of a dilution lawsuit depends on the answer to the question whether a reasonable buyer could assume a connection between the copyright holder and the defendant, and an assumption of a link in the form of sponsorship or approval is considered sufficient.
Erik Ruder argues that in recent years, decisions in favor of defendants who parody trademarks have dominated American court practice: the courts either decided that the parody is of sufficient quality so that the probability of confusion does not occur, and that parody only increases the distinctiveness of the trademark, since draws additional attention to it; or even in cases where there was a chance of confusion, the parodic use of trademarks was admissible on the basis of the First Amendment to the US Constitution, stressing that public interest in satire justified even commercial parody.
When courts decide cases in favor of the plaintiffs, they proceed either from the fact that in this case the use of a trademark cannot be considered a parody, either that the parody is not of sufficient quality and mixing is possible or that dilution legislation protects the reputation of the trademark from parody.
The American courts based their decisions in the examples cited mainly on the application of trademark dilution legislation.
The trademark erosion doctrine began to take shape in the 1920s, when Frank Schechter introduced the concept of “dilution” in relation to the unauthorized use of a well-known trademark for non-competing products. Initially, the doctrine was met with bayonets, but gradually erosion laws began to appear in some states, and in 1996 the Law on Trademark Erosion (FTDA) was adopted at the federal level and enabled the right holders to seek an injunction against erasing their marks, which is understood decrease in the distinctiveness of known signs, regardless of the presence of competition and the probability of mixing. In 2006, the US Federal Law on Trademark Dilution of Trademarks (Trademark Diligence Revision Act) was enacted to reinforce the concepts of “tarnishment” and “blurring”, both of which denote the misuse of other well-known trademarks. , not necessarily in relation to competing goods and services.
Article 3 of the Law names circumstances that prevent the satisfaction of the claim of the rightholder, in particular, the fair use of the trademark, including parody, criticism, comments regarding the rightholder or its goods (services), as well as non-commercial use. Currently, Kati Assaf notes, the satisfaction of a dilution lawsuit depends on the answer to the question whether a reasonable buyer could assume a connection between the copyright holder and the defendant, and an assumption of a link in the form of sponsorship or approval is considered sufficient.
Erik Ruder argues that in recent years, decisions in favor of defendants who parody trademarks have dominated American court practice: the courts either decided that the parody is of sufficient quality so that the probability of confusion does not occur, and that parody only increases the distinctiveness of the trademark, since draws additional attention to it; or even in cases where there was a chance of confusion, the parodic use of trademarks was admissible on the basis of the First Amendment to the US Constitution, stressing that public interest in satire justified even commercial parody.
When courts decide cases in favor of the plaintiffs, they proceed either from the fact that in this case the use of a trademark cannot be considered a parody, either that the parody is not of sufficient quality and mixing is possible or that dilution legislation protects the reputation of the trademark from parody.
America (nsk experience) will help us
For modern American doctrinal sources, a negative attitude to the institution of the erosion of trademarks and a positive one to their qualitative parody are quite typical.
Kati Assaf attributes the excessive protection of well-known trademarks to the manifestations of "brand fetishism" and believes that we should not help the right holders to deal with erosion. “Brand fetishism” is contrasted by a more skeptical and sober attitude to well-known trademarks - “brand atheism”.
Sandra Rierson believes that the harm that causes erosion legislation to society exceeds its positive effect, since monopolists become invulnerable at the expense of other market participants. The institute of trademark dilution, based on the hypertrophied personification of corporations, for which almost “moral” rights are recognized in relation to their means of individualization, is not harmless to the freedom of speech and competition. It is used "as a sledge against mosquitoes in the presence of a fly swatter." When alleged “scourers” receive cease-and-desist letters from copyright holders (“cease-and-desist letters”), most of them prefer to meet their demands out of harm's way, taking into account how much time, effort and financial resources is required to participate in judicial proceedings. proceedings, even with a favorable outlook. In addition, due to the streamlined wording of the norms of the institute of erosion, it is not easy even for qualified lawyers to distinguish winning cases from hopeless ones.
And Europe too
Anna Balatska, noting that the European Court of Human Rights has not yet had to consider cases of parody of a trademark, considers indisputable that the Court will then apply art. 10 of the European Convention guaranteeing freedom of expression.
The more famous the brand, the more jokes about it
The largest expert on trademarks and unfair competition J. Thomas McCarthy (McCarthy) said about the claims of copyright holders as if for Gazprom and Sberbank:
“Some of the processes initiated by copyright holders against those who ridicule their trademarks by parodying them, show the hypersensitivity of these copyright holders to humor and criticism. This is probably because the leaders of large companies are not accustomed to make fun of them. So they are ready to pull the dogs of prosecution on those who dare to mock the symbolism of their company. But just the more successful a company is, the more famous it is, the more likely it is that its means of individualization, the symbols, will become objects of jokes. It’s better to temper, rather than asking the courts to silence critics and mockers. ”
- Quoted. by: Sanders R. Elvish is king: answer. 12/06/2011. URL: www.aaronsanderslaw.com/uncategorized/elvish-is-king-answer
findings
At the end, the author of the article concludes and, really, you better not say:
“It turns out that with a sense of humor and self-irony everything is not always in order, not only among Russian owners of well-known trademarks, but also with foreign ones. To a certain extent, this can be understood. Well-known trademarks belong, as a rule, to large corporations. A large corporation cannot be likened to a person in everything and possess all positive human qualities. Probably, in cases similar to the incidents with “Gazpromchik” and “Sberbar”, the legal departments of large corporations will be more likely to overdo the struggle for the inviolability of their means of individualization than to show complacency. It remains to hope that parodies of well-known trademarks will nevertheless appear, since parody is a necessary attribute of modern culture. As the hero of the remarkable writer Victor Dragunsky said, “one must have a sense of humor!”.
PS Unfortunately, the article is not freely available and we cannot provide a link to the original text so that you can fully appreciate the work of the author, but we tried to convey the main ideas in a concise form. As you guessed, it was not a parody, because nichrome is not funny.
In the public domain there is another article based on the original. It is good that the author has put a link to the source, although not quite correctly.
ipcmagazine.ru/trademark-law/is-it-possible-to-use-a-parody-of-trademarks-in-russia#8
(c) Mityagin, Gotovtsev
Source: https://habr.com/ru/post/298956/
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