Category: Consumer & Retail

1
Australian Movement Trade Marks: Businesses “Moving” with the Times?
2
A Welcome Proposal to Introduce a Grace Period Into the Australian Designs Act
3
“Lettuce Turnip the Beet” Pun on T-Shirts Not Trademark Use, Ninth Circuit Affirms
4
Are Pre-Launch Statements Now Within the Range of the National Advertising Division?
5
Battle of the ballet shoes: UK court finds infringement of registered community design
6
Battle of the Bentleys: Bentley Motors loses trade mark appeal against Bentley Clothing
7
Neoprene Tote Bags: Watertight Not Copyright
8
Not such a friendly decision for Hugz: A new development in passing off that could help combat fashion copy-cats
9
What an awful racket… Acoustic product trade mark case provides opportunity for brands being piggy-backed to drive search traffic
10
Protecting Animated Logos – LA28 Ushers In A New Era

Australian Movement Trade Marks: Businesses “Moving” with the Times?

In a technological age where most consumers are receiving their information digitally, brands need to find new ways to engage with consumers. With nine out of ten Australians owning a smart phone and spending on average three hours a day on their devices, consumer engagement by way of multimedia is growing, increasing the popularity of movement trade marks.

The first movement trade mark was registered in Australia in 2002. There are currently 99 registered movement trade marks in Australia.

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A Welcome Proposal to Introduce a Grace Period Into the Australian Designs Act

The Designs Amendment (Advisory Council on Intellectual Property Response) Bill 2020 (Bill), with important changes to designs law, is currently before Senate for consideration. It includes a much-anticipated change to implement a grace period that will allow designers to publish their designs before applying for design protection.

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“Lettuce Turnip the Beet” Pun on T-Shirts Not Trademark Use, Ninth Circuit Affirms

The owner of the trademark “LETTUCE TURNIP THE BEET” cannot prevent third parties from printing the mere phrase on t-shirts, tote bags, or other products. The U.S. Court of Appeals for the Ninth Circuit affirmed on January 20, 2021 that consumers are likely to purchase such products because they find the phrase aesthetically pleasing and not because they associate the phrase with any particular source. LTTB LLC v. Redbubble, Inc., 19-16464 (9th Cir. 2021).

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Are Pre-Launch Statements Now Within the Range of the National Advertising Division?

In a bold departure from its focus on allegedly misleading and deceptive statements in commerce, the National Advertising Division’s (“NAD”) decision in PLx Pharma, Inc. (Vazalore), Report #6912, NAD/CARU Case Reports (December 2020), arguably stretches its jurisdictional scope to include certain pre-national launch investor statements.

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Battle of the ballet shoes: UK court finds infringement of registered community design

The UK IP Enterprise Court has ruled that an Austrian shoe company infringed a registered community design (“RCD”) held by a US based sustainable fashion brand although there was no infringement of the corresponding unregistered community design (“UCD”). The decision is a relatively rare example of a UK, or EU, based Court analyzing fashion items and addressing design novelty issues between 2017 and now. A full copy of the decision can be found here.

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Battle of the Bentleys: Bentley Motors loses trade mark appeal against Bentley Clothing

Luxury car manufacturer Bentley Motors has lost its appeal against a ruling which found it infringed the trade marks of a small, family company called Bentley Clothing. A full copy of the decision can be found here.

Following the ruling, Bentley Motors must stop using the trade mark BENTLEY and their combination sign – the B-in-Wings logo and the word BENTLEY (shown below) – on clothing.

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Neoprene Tote Bags: Watertight Not Copyright

In the recent judgment State of Escape Accessories Pty Limited v Schwartz [2020] FCA 1606, Justice Davies of the Federal Court of Australia found a fashionable neoprene tote bag was not a “work of artistic craftsmanship” and therefore not an “artistic work” for the purposes of the Copyright Act 1968 (Cth) (the Act). Since the Court found that copyright did not subsist in the State of Escape bag (the Escape Bag), there was no finding of copyright infringement.

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Not such a friendly decision for Hugz: A new development in passing off that could help combat fashion copy-cats

On 19 November 2020, the Intellectual Property Enterprise Court (IPEC) in the UK handed down its judgment in the case of Freddy SPA v Hugz Clothing Ltd & Ors [2020] EWHC 3032, which ran for an unusually long time for the IPEC (three days).

The decision was a rare occurrence of a passing off claim, together with other IP causes of action, succeeding in the get-up of a functional item, being “bum enhancing jeans”. Ordinarily, such cases, particularly with respect to fashion items, fail as the get-up is seen as merely design elements or ornamental, or the circumstances of the use lead to a conclusion that other trade marks (e.g. brand names and logos) dominate consumer perception.

This case could embolden brand owners in relation to enforcement of the look and feel of their clothing as it creates the possibility of confusion ‘post-sale’ in addition to the point of sale.

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What an awful racket… Acoustic product trade mark case provides opportunity for brands being piggy-backed to drive search traffic

An interesting recent decision by the Intellectual Property Enterprise Court (IPEC) on an unusual set of facts may provide an opportunity for brand owners to prevent unauthorised third parties from piggy-backing off a trade mark to drive traffic to their competing sites or product offerings. Uniquely, this has been found in circumstances which do not amount to traditional “bait and switch” or passing off and where consumers are not confused about the origin of the goods.

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Protecting Animated Logos – LA28 Ushers In A New Era

The Los Angeles Organizing Committee for the 2028 Olympic & Paralympic Games (LA28) has recently unveiled the official LA28 emblem, which, for the first time, is an animated emblem consisting of multiple logos (shown below). “Built for the digital age”, LA28 has designed the emblem to “evolve over time, reflecting [Los Angeles’] spirit of limitless possibility”.

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