Champagne supernova: Cristal brand owner sues cava producer (Brands & IP Newsnotes - issue 5)
23 June 2017
Do you know your Champagne from your Cava? Quite possibly, but a High Court judge held in late 2015 that a Spanish cava producer trading under the brand name, “Cristalino” had used a confusingly similar sign to that of the famous tipple preferred by rappers and the like, “Cristal”.
The result of the case was perhaps unsurprising, especially given that the Defendants had not bothered to turn up for trial.
Having lost at trial, and in line with the usual practice of having separate trials on liability and quantum, the Spanish company was ordered to disclose the profits it made on the sales of Cristalino. It failed to do so, and did not take part in the account of profits that followed.
Account of profits hearings are so rare they are said to be like hens’ teeth. However, given the recent spate of them (including the one in the Jack Wills v House of Fraser litigation, in which Lewis Silkin was instructed), they might better be described as being like London buses - you wait for ages and then several come along at once.
The basic position in an account of profits is that the infringer has to hand over any ‘profit’ made. To determine the profit, the infringer can deduct properly attributable costs, and there can then be an ‘apportionment’ carried out to take account of the fact that the infringing goods (i.e. the cava in this case) have intrinsic value separate from that of the trade mark.
However, in order to do so, infringers need to get their evidence spot on, which is hard to do when you don’t take part in proceedings. Having failed to submit any evidence on costs that should be deducted, the Spanish company was ordered to hand over €1.3million. Those sorrows will take some drowning.
Playing with fire: user-generated content on Twitter (Brands & IP Newsnotes - issue 5)23 June 2017
The strange world of Twitter, where brands engage with their customers at their peril. The main lesson learned from the recent #WalkersWave Twitter promotion is one that brands have heard before: the British public love nothing more than a piss-take.
Public goes nutellay crazy for AI design (Brands & IP Newsnotes - issue 5)23 June 2017
Nutella hit the headlines in February this year after using an algorithm to produce millions of unique labels in Italy. The jars flew off the shelves with customers keen to get their hands on a one-of-a kind jar. Each label design was completely unique with only the Nutella logo remaining the same.
Give me a break…KitKat latest developments (Brands & IP Newsnotes - issue 5)23 June 2017
Last month the Court of Appeal gave us the latest decision in the long running battle between Nestle and Cadbury. Interestingly, whilst agreeing that the well-known four- fingered chocolate snack should not be registered as a 3D trade mark, all three Lord Justices chose to give their own judgment. And for Nestle, this one might just take the biscuit.
Get me a #covfefe (Brands & IP Newsnotes - issue 5)23 June 2017
In case you missed it, the 45th President of the United States recently took his habit of late night tweeting to a new low. Presumably meaning to rail against the ‘mainstream media’ coverage, Trump instead complained of “negative press covfefe” and trailed off mid-sentence. Cue ridicule and the hashtag #covfefe trending on Twitter.
All hands on deck as creative industries and search engines tackle online piracy (Brands & IP Newsnotes - issue 5)23 June 2017
The UK Government, through the UKIPO, Ofcom and DMCS, has helped broker an agreement between Google, Bing, the BPI and Motion Picture Association over a new voluntary code of practice.
To UPC or not UPC – implementation of Unified Patent Court delayed (Brands & IP Newsnotes - issue 5)23 June 2017
The Unified Patent Court (UPC) is intended to provide a regional forum resolve patent disputes. At the moment, parties have to litigate patent disputes on a country by country basis across Europe, which is time-consuming, expensive and can lead to differing decisions in some countries. UPC decisions will have effect in all 25 states participating in the UPC, providing a single forum to resolve these disputes.
Clash of the Titans: Google v Uber (Brands & IP Newsnotes - issue 5)23 June 2017
In February, Waymo, part of Google’s parent company, sued Uber for theft of confidential information. Allegedly, a former employee of Waymo, who had been a key part of Google’s driverless car initiative, took 14,000 files and then shortly jumped ship to start up his own autonomous vehicle company. A short time later, Uber acquired the start-up for $680 million.