The Coca-Cola Company sues to protect bottle shape in US

I’m not passing comment here on what The Coca-Cola Company is doing with its trade marks: I don’t know enough about this story, and it’s many years since I bought orange juice in a US grocery store. In fact, I might never have done so at all. But I think there are lessons in this story about the company’s spat with Aldi over a bottle shape.

The bottles look pretty mundane to me (and I recall in the Round Imports v PML Redfearn Ltd [1999] CIPA 725 design right case yonks ago that the judge (Rattee J) thought that differences a bottle designer might consider significant could well be lost on inexpert consumers – in other words, bottle designs have an inherent tendency to look pretty similar), but The Coca-Cola Company has been selling juice in bottles of this shape for some nine years. That might be long enough to create a reputation in the shape, I suppose, if the shape is ever going to get to the stage of having a reputation. Certainly this is what The Coca-Cola Company claims is what has happened: it claims its rights in the trade dress of the product have been infringed. That’s essentially a trade mark point, but there is a design patent point too – the bottle shape is protected by several of these volatile rights. Volatile, because like a UK or Community registered design, design patents are readily granted, and frequently invalidated. Round Imports, though of absolutely no significance in a case in the US, is concerned with the limitations of design protection for mundane designs.

Aldi is selling a similar drink in a bottle which is very similar – perhaps, in Round Imports terms, identical. Maybe The Coca-Cola Company is right to claim it is damaged by this, although I’d have thought the consumer would pay attention to a lot more elements of the get-up than the bottle shape alone (indeed, might ignore the bottle shape and look at the name and other indicia). Be that as it may, and (as I said) not wishing to comment on the particular case (which also involves design patent claims), there are plenty of other cases around like this where businesses have tried to “leverage” their trade mark rights and create out of them a true monopoly. And if trade mark and design owners are able to do this, to my mind it’s a good indication that the system is broken.

Copyright absolutists revisited: The Royal Opera House

The Lawyer carries a strange story about the excesses of intellectual property, or rather its exercise: the Royal Opera House intimidating the proprietor of an opera blog, Intermezzo with threats of legal action over photographs reproduced on the blog.

Apart from the completely OTT threats of legal proceedings, the ROH has brought ridicule upon itself because of the misspellings - "copywrite" and "consul" - and other errors in the correspondence emanating from its legal department. We all write emails in haste, but not that sort of email. As far as the merits are concerned, it seems - contrary to initial impressions - that it's not photos produced by the ROH for the use of the press the reproduction of which it objects to (surely an implied licence, if there is no express one, would cover that), and in the end it's only a couple of photos of sets, in which the set designer presumably owns the copyright, that are in dispute. Even so, fair dealing for criticism and review or reporting current events should deal with that (though reporting current events doesn't get you off the hook if the work is a photo). For criticism and review, acknowledgements are required, and perhaps Intermezzo has fallen down here too - but that's easily remedied. And by the way, Intermezzo, should you happen to read this, "fair use" is an American copyright concept - don't given your opponents a chance to have have a cheap shot back at you!

I'm reminded of another story about which I posted some time ago, where a copyright owner behaved as if copyright (I think they could at least spell it) was some sort of absolute monopoly. I suppose I should be pleased that there is still such ignorance about basic principles of intellectual property law: it might keep me gainfully employed.

Of course, the most bizarre aspect of the whole episode is an institution - one that is trying to persuade the world that it isn't stuck-up and elitist - hammering one of its most effective supporters. Judging by the comments, it could have lost itself a lot of custom. I've patronised the place once, back in the days before we had school fees to pay: now that I might be able to afford an occasional night at the opera I'll be inclined to find another house, or stick to orchestral or chamber music, just as I will avoid buying the products of others whose use of their intellectual property is oppressive, anticompetitive or avaricious.

August monthly IP update podcast

I've now completed the August programme and uploaded to audio file and the notes to the server. Among the topics covered are teh Specsavers case, the Honda spares exhaustion case, the opinion of the Advocates General on the European and European Union Patent Court, the idea of appointing an IP Tsar, a patent office hearing in Manchester, and much more. I have included a little Russian but have not tried to pronounce it. Subscribers can now download them and get another hour CPD - I hope you like it.

Convictions for trade mark offences

Two recent stories on convictions under the criminal provisions of the Trade Marks Act. I must still confess to being unconvinced about the merits of enforcing private property rights through criminal offences, especially where the IP rights owners are multinational behemoths who can afford to enforce their own rights. The cases come from Edinburgh and Leicester respectively, involving in the first case Microsoft software and some print cartridges and in the second DVDs, and do not apparently involve copyright. In the Scottish case, the trader has been rosecuted and assets have been seized (reading between the lines a bit) under the Proceeds of Crime Act, and now Microsoft is quite rightly seeking damages. In Leicester, the re-offending shopkeeper has been sent to prison pour encourager les autres though who can tell whether les autres will take note.

Coincidentally, the IPKat has a report of the experiences of an unfortunate trade mark owner, Christine Watson, who found that the criminal provisions of the Trade Marks Act didn't assist her much. Another illustration of how the trade mark system in this country, and in the European Community, is badly broken. Enforcement by trading standards departments is always going to be uneven, as differnt authorities will have differnt priorities, different budgets, and different levels of experience. It does look from the scant evidence of these three items as if trading standards departments might be more receptive to complaints from Microsoft or Hollywood studios than from the small businesses who need their help, though it would be nwise to draw many conclusions from the press stories.

Because trade marks have - still! - an important consumer protection dimension, trading standards departments need to be involved in their enforcement, even where the rights owner could afford to take the matter to court. That dimension is clear enough in counterfeiting cases, less clear in "ordinary" infringement situations. But as the IPKat also reported a few days ago, an EU report has (reportedly: the Kat's source is the Telegraph) an EU-funded study (for which, as the Kat points out, read tax-payer funded study) has concluded that fakes are OK. Well, that's a simplisitc generalisation: one might read it as saying that we should be worried about counterfeit parts for cars and aircraft, and drugs, before we worry about counterfeit handbags, and that sounds perfectly reasonable. I don't agree that counterfeits produce a beneficial effect by speeding up the fashion cycle, and I certainly don't see how they raise brand awareness - the brand awareness is surely a necessary pre-condition for a flourishing counterfeit industry.

If however they destroy the artificial cachet of expensive brands, and cause people to focus instead on real virtues like quality and - dare I say - durability, which at present are subsumed into the brand and lost to sight behind the more superficial aspects, then that sounds like a good thing.