It is a case from the mid-1980s I remember well. It was concerned with the notion of passing off, in this instance the use of a trademark considered to be similar to that of another business. The two protagonists were Laura Ashley and the wallpaper/home furnishings company Coloroll. The latter had developed a range of wallpapers that had a similar look to Laura Ashley's. This wasn't really the problem; the logo was. Coloroll's logo looked not unlike Laura Ashley's. It was an oval and had a sort of flowery arrangement inside it. So did Laura Ashley's. Whether consumers were inclined to think that there was some association between the two businesses is doubtful, but this wasn't of course the point; Laura Ashley's intellectual property and the goodwill and attributes of its brand were.
There is a very well-known global restaurant brand which has an establishment in Palma. Away from the capital, there is - or was - a restaurant that isn't globally known. Its name was very similar. Its logo was pretty much identical to the globally known brand. There was an application to register this as a trademark, which was seemingly and probably unsurprisingly opposed. Nevertheless, the restaurant with the similar name and logo operated for a season before changing the name the following season. The logo also changed, but not to the extent that this prevented a reviewer on Trip Advisor from still being able to comment on the similarity with a famous chain of restaurants.
The restaurant with the similar name and logo appears to be no more. At any rate, when I passed by the other day the sign was down and the "local" appeared to have been cleared. If it is no more, then it is a bit of a shame. It wasn't bad, and for the most part reviews on Trip Advisor agreed that it wasn't bad. But one does have to ask why it was felt necessary to apparently wish to imitate a very well-known restaurant. Surely some form of challenge had to be expected, which at best might mean having to go the trouble and cost of changing signs, menus etc. At worst, it might mean far more. Were the punters likely to have thought that there was a genuine association with the well-known brand? Probably not. In which case, why bother?
In Tenerife, lawyers acting for Gordon Ramsay are trying to find ways of dealing with a restaurant in Puerto Colon which has been trading by the name "Gordon Ransay's" for the past four years or so. You would think that, despite the alteration of one letter in the name, this is a clear infringement of intellectual property. Even with this one letter change, the script style of the restaurant's name could lead one to read it as "Ramsay", while the "R" is not a million miles away from the "R" that is in Ramsay's signature trademark. To make matters worse, this particular restaurant gets some rotten reviews. Ramsay has every right to be furious and to be frustrated by the difficulties encountered in tackling this apparent passing off.
Andema is the national association for the defence of trademarks and brands. Its director-general said recently that Mallorca and the Canaries were "black spots" for trademark falsification. He was speaking in the context of a product counterfeiting case involving a Chinese retailer who had been fined a mere 240 euros for selling a bag with the Louis Vuitton name. The reason for the low fine was that, though the retailer had acquired 1,075 pirated Vuitton bags, 1,074 of them were in a warehouse. Only one had been in the store.
Whether counterfeiting or passing off, the principle is the same; there is an attack on intellectual property, and I imagine most of us will be fully aware of the counterfeiting that exists in Mallorca. No one is really duped into believing they're buying the genuine item (or at least you would hope they aren't), and while it might seem fairly innocuous to buy some fake sunglasses or what have you, the scale of the counterfeiting is anything but innocuous.
A national law of 2001 was designed to help protect large and well-known brands from infringements. How well it is being applied is perhaps a question that Gordon Ramsay might like an answer to, but there may nevertheless be a danger that it goes too far in undermining efforts of local entrepreneurs, such as those behind the successful Lemon Factory, makers of Pep Lemon. While the process of a challenge by Pepsi to its Pep Cola is ongoing, the company is marketing it simply as "Pep". There may be some similarity, but as everyone knows, Pep is a common name in Mallorca. Would anyone seriously mistake a Pep Cola for a Pepsi? No, but then such is the way with intellectual property.
Showing posts with label Intellectual property. Show all posts
Showing posts with label Intellectual property. Show all posts
Wednesday, January 21, 2015
Monday, June 24, 2013
Cinema's Black Weekends
The weekend before last was Black Saturday and Sunday for Spanish cinemas. Box-office takings were at their lowest ever. And they weren't just slightly lower; they were, as "El País"* reported, lower by a whopping 30%. Receipts amounted to not a great deal more than two million euros.
Weather may have had something to do with lower numbers, as also may have had the absence of a real box-office draw, but the slump was of such a level that these explanations aren't sufficient. The fact is that Spanish cinemas are in their own state of economic crisis. The national economic mess has only now really started to affect them; the previous record low before the 30% fall on Black Saturday and Sunday was in April this year.
A factor in this sudden fall, and it is impossible not to conclude that it must be a factor, is the rise in the cost of going to the cinema that was brought about by the increase in IVA to 21%. Though this increase was introduced some nine months ago, Spanish cinema-goers are suffering the cumulative effect of several months of 13% higher tax and have said enough is enough. Black Saturday and Sunday and the weekend in April have not been isolated weekends; four other weekends this year mean that 2013 has registered two-thirds of the worst weekends for box-office takings.
Economic crisis, though, has affected the cinema in a different way. Watching films hasn't become any less popular; indeed, it is probably more popular than ever. What better way of getting around the cost of an evening at the cinema and the 13% rise in IVA than by watching the latest film at home for free? Spain is acknowledged as Western Europe's leader when it comes to copyright piracy.
For some years, the international film industry and especially Hollywood has taken a dim view of Spanish laxness in tackling illegal downloads and piracy. It also hasn't taken that kindly to Spanish courts having ruled on several occasions that file-sharing and the "torrenting" of copyright material, so long as it is for private use, is legal. Hollywood has applied more and more pressure, and the Office of the United States Trade Representative (USTR) has been monitoring Spain's responses to the accusation of piracy champion of Western Europe. It has recently looked favourably on Spain by not putting it back on the so-called 301 Watch List of naughty-boy countries. But Spain is on probation. The USTR performs what it calls "out-of-cycle reviews", which mean that it can add a country to its watch list at any time and not just when it issues its annual list (which it did in May).
The principal reason for Spain having avoided being put back on the naughty list is the law on intellectual property. Originally called the Sinde Law (after the minister in the previous government), it has become a double-barrelled law, Sinde-Wert Law. Yes, its that man again. José Ignacio Wert, this time firmly with his culture hat on rather than his educational one. The legislation was enough to allow the USTR to look kindly on Spain.
The Spanish Government has pretty much admitted that the mere threat of trade sanctions by the USA through a failure to improve its intellectual property record has been the reason for the law; it couldn't have said anything else, once Wikileaks had established the fact. Whether there would ever be trade sanctions is questionable, but the government hasn't been taking any chances. It also wanted to avoid not just being put back on the watch list but being put on the priority watch list along with international copyright pariahs such as China, Pakistan and Russia.
The probation may, though, prove only to be probation. The USTR out-of-cycle review could well unearth enough concerns to put Spain back on the naughty chair, and the reason why is because the law has been proving to be ineffective. Under the law, there is a committee which receives requests to inspect websites suspected of providing material for illegal download. A year after it was set up, the committee had investigated only just over a hundred websites that warranted serious consideration and under a quarter of these investigations resulted in content being removed. Various organisations, such as one for film producers, have already lost faith in the committee's effectiveness and don't bother lodging complaints.
While the cost of going to the cinema may be the main reason for declining box-office numbers, there is another reason, and it is one that the government is still failing to address.
* El País
Any comments to andrew@thealcudiaguide.com please.
Weather may have had something to do with lower numbers, as also may have had the absence of a real box-office draw, but the slump was of such a level that these explanations aren't sufficient. The fact is that Spanish cinemas are in their own state of economic crisis. The national economic mess has only now really started to affect them; the previous record low before the 30% fall on Black Saturday and Sunday was in April this year.
A factor in this sudden fall, and it is impossible not to conclude that it must be a factor, is the rise in the cost of going to the cinema that was brought about by the increase in IVA to 21%. Though this increase was introduced some nine months ago, Spanish cinema-goers are suffering the cumulative effect of several months of 13% higher tax and have said enough is enough. Black Saturday and Sunday and the weekend in April have not been isolated weekends; four other weekends this year mean that 2013 has registered two-thirds of the worst weekends for box-office takings.
Economic crisis, though, has affected the cinema in a different way. Watching films hasn't become any less popular; indeed, it is probably more popular than ever. What better way of getting around the cost of an evening at the cinema and the 13% rise in IVA than by watching the latest film at home for free? Spain is acknowledged as Western Europe's leader when it comes to copyright piracy.
For some years, the international film industry and especially Hollywood has taken a dim view of Spanish laxness in tackling illegal downloads and piracy. It also hasn't taken that kindly to Spanish courts having ruled on several occasions that file-sharing and the "torrenting" of copyright material, so long as it is for private use, is legal. Hollywood has applied more and more pressure, and the Office of the United States Trade Representative (USTR) has been monitoring Spain's responses to the accusation of piracy champion of Western Europe. It has recently looked favourably on Spain by not putting it back on the so-called 301 Watch List of naughty-boy countries. But Spain is on probation. The USTR performs what it calls "out-of-cycle reviews", which mean that it can add a country to its watch list at any time and not just when it issues its annual list (which it did in May).
The principal reason for Spain having avoided being put back on the naughty list is the law on intellectual property. Originally called the Sinde Law (after the minister in the previous government), it has become a double-barrelled law, Sinde-Wert Law. Yes, its that man again. José Ignacio Wert, this time firmly with his culture hat on rather than his educational one. The legislation was enough to allow the USTR to look kindly on Spain.
The Spanish Government has pretty much admitted that the mere threat of trade sanctions by the USA through a failure to improve its intellectual property record has been the reason for the law; it couldn't have said anything else, once Wikileaks had established the fact. Whether there would ever be trade sanctions is questionable, but the government hasn't been taking any chances. It also wanted to avoid not just being put back on the watch list but being put on the priority watch list along with international copyright pariahs such as China, Pakistan and Russia.
The probation may, though, prove only to be probation. The USTR out-of-cycle review could well unearth enough concerns to put Spain back on the naughty chair, and the reason why is because the law has been proving to be ineffective. Under the law, there is a committee which receives requests to inspect websites suspected of providing material for illegal download. A year after it was set up, the committee had investigated only just over a hundred websites that warranted serious consideration and under a quarter of these investigations resulted in content being removed. Various organisations, such as one for film producers, have already lost faith in the committee's effectiveness and don't bother lodging complaints.
While the cost of going to the cinema may be the main reason for declining box-office numbers, there is another reason, and it is one that the government is still failing to address.
* El País
Any comments to andrew@thealcudiaguide.com please.
Sunday, January 27, 2013
The Mallorca Branding Of Bradley
Yesterday, I referred to the small attention that the Balearics tourism promotion action plan is to give to cycling tourism. As cycling tourism is meant to be a key component of winter tourism, this small attention seems perverse. And as Mallorca is currently in the midst of yet more Wiggo fever, it seems doubly perverse that not more attention is planned and that Bradley Wiggins isn't a part of this promotion.
On the face of it, the face of Wiggins would make a perfect fit with Mallorcan promotion of cycling tourism and tourism promotion in general, especially to a UK market. He spends much of his time on the island, he has expressed his fondness for the island, he is able to benefit from its diverse geography in his training. Wiggo, the face of Mallorca, or a facet of Mallorca makes sense.
However, it isn't quite this simple. The Wiggins face and the Wiggins name are two of the most marketable assets in sport at present. His are not assets as strong or as recognisable as, say, Beckham, Bolt or Messi, but they are strong nevertheless. And such strength means value, the value that comes from both image and name rights.
Wiggins has a smart agent. He is Jonathan Marks of MTC. It is Marks who looks after many of his affairs and it would be he who would advise on image rights. If it hasn't already been done, the Wiggins name is surely worth protecting, branding it as a trade mark and name. The Wiggins image - that hugely recognisable face - would be worth even more from its intellectual property protection.
There is some grey area about the use of a name for marketing purposes, but there is also a growing amount of case law that makes even the use of a name something to be wary of doing. The protection of a person's physical image is better understood and more clearly made under law, but whether it is just name or both name and image, then any organisation which might wish to gain from using either should watch out.
So, using Wiggins, his name or his face, would potentially be fraught with risk were they to be used without permission. It doesn't automatically follow that permission means payment, but normally of course it does, and for a highly recognisable "brand" such as Wiggins, the payment would almost certainly not be cheap.
Given Wiggins' affiliation with Mallorca and especially Alcúdia and Pollensa, he may feel personally that he wants to give something back and would so waive the need for compensation. He may feel this, but would his agent? It is his role to do as much as he can for his client and to ensure that he optimises the return on himself as a brand.
Mallorca has of course used names and images in the past. How successful any of this celebrity association has been is hard to say. Michael Douglas may be the one exception to an otherwise questionable investment in various "faces", but I say may be. The tourism ministry has pretty much turned its back on these endorsements and relationships, recognising that they don't necessarily work. This said, one reason for them not working lies with the fit between the celebrity and what is being promoted. Wiggins equals cycling tourism most certainly does fit, so there may be grounds for revisiting the whole issue of celebrity association. A caveat to this, however, would be just how well known the Wiggins image is internationally.
The relationship, though, is two way. What might be good for Mallorca, might not necessarily be good for Wiggins. Hot property that he is, requests for his image are doubtless hitting Mr. Marks desk every day. Not all will be agreed to. Strategic development of the Wiggins image demands that agreements coincide with this development. Then there is the man himself. He is, as most of us are now aware, less than comfortable with the trappings of celebrity. As a part-time resident of the island, would he really want his face being more known than it already is?
Suggestions as to celebrity associations are sometimes made without fully understanding the implications. A prime example was Pollensa's idea of using Agatha Christie, an idea about which nothing more has been heard. I suspect I know why. Firstly, the image was wrong (unless Puerto Pollensa does wish to promote itself solely as a retirement home for ageing dames, as the typical Christie image would convey). Secondly, the Christie estate guards the image jealously, which means a high tariff being placed on it.
Wiggins is altogether more sensible, but if cost were a factor, and it more than likely would be, which part of local government would be prepared to bear the cost? At present, none would probably be the answer.
Any comments to andrew@thealcudiaguide.com please.
On the face of it, the face of Wiggins would make a perfect fit with Mallorcan promotion of cycling tourism and tourism promotion in general, especially to a UK market. He spends much of his time on the island, he has expressed his fondness for the island, he is able to benefit from its diverse geography in his training. Wiggo, the face of Mallorca, or a facet of Mallorca makes sense.
However, it isn't quite this simple. The Wiggins face and the Wiggins name are two of the most marketable assets in sport at present. His are not assets as strong or as recognisable as, say, Beckham, Bolt or Messi, but they are strong nevertheless. And such strength means value, the value that comes from both image and name rights.
Wiggins has a smart agent. He is Jonathan Marks of MTC. It is Marks who looks after many of his affairs and it would be he who would advise on image rights. If it hasn't already been done, the Wiggins name is surely worth protecting, branding it as a trade mark and name. The Wiggins image - that hugely recognisable face - would be worth even more from its intellectual property protection.
There is some grey area about the use of a name for marketing purposes, but there is also a growing amount of case law that makes even the use of a name something to be wary of doing. The protection of a person's physical image is better understood and more clearly made under law, but whether it is just name or both name and image, then any organisation which might wish to gain from using either should watch out.
So, using Wiggins, his name or his face, would potentially be fraught with risk were they to be used without permission. It doesn't automatically follow that permission means payment, but normally of course it does, and for a highly recognisable "brand" such as Wiggins, the payment would almost certainly not be cheap.
Given Wiggins' affiliation with Mallorca and especially Alcúdia and Pollensa, he may feel personally that he wants to give something back and would so waive the need for compensation. He may feel this, but would his agent? It is his role to do as much as he can for his client and to ensure that he optimises the return on himself as a brand.
Mallorca has of course used names and images in the past. How successful any of this celebrity association has been is hard to say. Michael Douglas may be the one exception to an otherwise questionable investment in various "faces", but I say may be. The tourism ministry has pretty much turned its back on these endorsements and relationships, recognising that they don't necessarily work. This said, one reason for them not working lies with the fit between the celebrity and what is being promoted. Wiggins equals cycling tourism most certainly does fit, so there may be grounds for revisiting the whole issue of celebrity association. A caveat to this, however, would be just how well known the Wiggins image is internationally.
The relationship, though, is two way. What might be good for Mallorca, might not necessarily be good for Wiggins. Hot property that he is, requests for his image are doubtless hitting Mr. Marks desk every day. Not all will be agreed to. Strategic development of the Wiggins image demands that agreements coincide with this development. Then there is the man himself. He is, as most of us are now aware, less than comfortable with the trappings of celebrity. As a part-time resident of the island, would he really want his face being more known than it already is?
Suggestions as to celebrity associations are sometimes made without fully understanding the implications. A prime example was Pollensa's idea of using Agatha Christie, an idea about which nothing more has been heard. I suspect I know why. Firstly, the image was wrong (unless Puerto Pollensa does wish to promote itself solely as a retirement home for ageing dames, as the typical Christie image would convey). Secondly, the Christie estate guards the image jealously, which means a high tariff being placed on it.
Wiggins is altogether more sensible, but if cost were a factor, and it more than likely would be, which part of local government would be prepared to bear the cost? At present, none would probably be the answer.
Any comments to andrew@thealcudiaguide.com please.
Sunday, October 16, 2011
Bingo! There's no uncertainty
A listener to "Test Match Special" last year came up with the idea for a game called "Boycott Bingo". This entails calling out "bingo" every time the great man - Sir Geoffrey - utters one of his regular and predictable clichés, e.g. "corridor of uncertainty", "we used to play on uncovered wickets" or "my mum would have caught that in her pinny".
Mallorca has its own version of Boycott Bingo in that bingo illegality crops up as regularly and as predictably as the Great Yorkshireman states that his gran could have "hit that with a stick of rhubarb". One moment it's outdoor games at fiestas being banned because minors are in attendance - bingo!; the next it's some old dears having their games interrupted by the sound of heavy boots - bingo!; then it's a hotel being raided because it's conducting games that it shouldn't be - bingo!
When day centres for the elderly were being raided by plod who suspected - correctly - that the oldsters were up to no good in playing bingo for which there was no licence, all manner of indignation was released. How insensitive. Why stop a little bit of pleasure for the old folk? It was accepted that perhaps it had been a bit heavy-handed. However, it turned out that behind certainly one of the illicit bingo games was something a bit fishy that proved worthy of further investigation.
There is no real uncertainty regarding the playing of bingo. You need a licence. The absence of one may have something to do with plod having pounded down the corridors of a hotel in Sa Coma to put a stop to its bingo. I could always tell you which hotel, but I won't, because it's not been reported elsewhere, so I'd rather not say. But rest assured, keep checking Sa Coma hotels on "Trip Advisor" and there will doubtless be some entry referring to a bingo raid. "I was just about to call 'house', and this policeman took my card away. I shall be complaining to the tour operator."
One difference between the relatively small cerveza of the old folks' day centre bingo games and those in the hotel has to do with the amount of money the latter raise. Two and seven? Twenty-seven. Twenty-seven thousand euros. A month.
If you were to go and look on "Trip Advisor" and choose a hotel on Mallorca, you might well find mention of bingo among the entertainment on offer. Most hotels have games. And are they all correctly licensed? I couldn't begin to answer that question. But the two bingo associations - AESBI and ASBA - have been making repeated representations to relevant authorities regarding the need to "eradicate the large number of illegal bingo games that proliferate" on Mallorca and the other islands.
A couple of days before the raid in Sa Coma, the two associations had in fact presented a proposal for the establishment of electronic bingo terminals in hotels as part of their drive to stamp out illegal games. The proposal may well be greeted favourably, as a "win" would involve a ten per cent tax finding its way into the coffers of the Hacienda.
It will be instructive to see how this all pans out, as Mallorca's hotels, anticipating the likely change of national government, are putting together various proposals of a legal nature for the new Partido Popular administration to chew over.
One of these is to do with the law on intellectual property. This has an impact on the "complementary offer" of entertainment in its widest sense within hotels (of which, incidentally, the electronic bingo terminals would be a new addition, say the bingo associations). It doesn't have to do solely with any rights from musical performances. It also covers television.
Decisions by both the European Court of Justice and the Spanish Supreme Court have led to interpretations that television broadcasts in hotel rooms constitute "public communication" and are therefore liable to rights payments. This is because, for the most part, a cable or satellite signal is re-transmitted by the hotel to the rooms. Were signals to go directly to the rooms (far more costly to set up), then the communication would be private, meaning no broadcast rights payments.
On these two matters, the bingo and the broadcasting, I am with the bingo associations and the police but not with the public communication interpretation; charges are probably passed on for what is made public but is consumed in private. As for bingo, though it is harmless fun, it is fair to ask what actually happens to money that is raised. There is no uncertainty, or shouldn't be. Gaming is either licensed or it isn't.
Any comments to andrew@thealcudiaguide.com please.
Mallorca has its own version of Boycott Bingo in that bingo illegality crops up as regularly and as predictably as the Great Yorkshireman states that his gran could have "hit that with a stick of rhubarb". One moment it's outdoor games at fiestas being banned because minors are in attendance - bingo!; the next it's some old dears having their games interrupted by the sound of heavy boots - bingo!; then it's a hotel being raided because it's conducting games that it shouldn't be - bingo!
When day centres for the elderly were being raided by plod who suspected - correctly - that the oldsters were up to no good in playing bingo for which there was no licence, all manner of indignation was released. How insensitive. Why stop a little bit of pleasure for the old folk? It was accepted that perhaps it had been a bit heavy-handed. However, it turned out that behind certainly one of the illicit bingo games was something a bit fishy that proved worthy of further investigation.
There is no real uncertainty regarding the playing of bingo. You need a licence. The absence of one may have something to do with plod having pounded down the corridors of a hotel in Sa Coma to put a stop to its bingo. I could always tell you which hotel, but I won't, because it's not been reported elsewhere, so I'd rather not say. But rest assured, keep checking Sa Coma hotels on "Trip Advisor" and there will doubtless be some entry referring to a bingo raid. "I was just about to call 'house', and this policeman took my card away. I shall be complaining to the tour operator."
One difference between the relatively small cerveza of the old folks' day centre bingo games and those in the hotel has to do with the amount of money the latter raise. Two and seven? Twenty-seven. Twenty-seven thousand euros. A month.
If you were to go and look on "Trip Advisor" and choose a hotel on Mallorca, you might well find mention of bingo among the entertainment on offer. Most hotels have games. And are they all correctly licensed? I couldn't begin to answer that question. But the two bingo associations - AESBI and ASBA - have been making repeated representations to relevant authorities regarding the need to "eradicate the large number of illegal bingo games that proliferate" on Mallorca and the other islands.
A couple of days before the raid in Sa Coma, the two associations had in fact presented a proposal for the establishment of electronic bingo terminals in hotels as part of their drive to stamp out illegal games. The proposal may well be greeted favourably, as a "win" would involve a ten per cent tax finding its way into the coffers of the Hacienda.
It will be instructive to see how this all pans out, as Mallorca's hotels, anticipating the likely change of national government, are putting together various proposals of a legal nature for the new Partido Popular administration to chew over.
One of these is to do with the law on intellectual property. This has an impact on the "complementary offer" of entertainment in its widest sense within hotels (of which, incidentally, the electronic bingo terminals would be a new addition, say the bingo associations). It doesn't have to do solely with any rights from musical performances. It also covers television.
Decisions by both the European Court of Justice and the Spanish Supreme Court have led to interpretations that television broadcasts in hotel rooms constitute "public communication" and are therefore liable to rights payments. This is because, for the most part, a cable or satellite signal is re-transmitted by the hotel to the rooms. Were signals to go directly to the rooms (far more costly to set up), then the communication would be private, meaning no broadcast rights payments.
On these two matters, the bingo and the broadcasting, I am with the bingo associations and the police but not with the public communication interpretation; charges are probably passed on for what is made public but is consumed in private. As for bingo, though it is harmless fun, it is fair to ask what actually happens to money that is raised. There is no uncertainty, or shouldn't be. Gaming is either licensed or it isn't.
Any comments to andrew@thealcudiaguide.com please.
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