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Things I thought this lunchtime... ... Tesco cheap imitation red… - Sally's Journal
June 24th, 2008
05:12 pm

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From:geekette8
Date:June 24th, 2008 08:27 pm (UTC)
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Seems fairly clear to me if you call something "imitation red bull" you are trying to associate your product with the trademark! Not *confusing* as such, I agree, though, but the last part of that last quoted sentence is the bit you'd be infringeing.

Even though you're clear it's not real Red Bull, it's Tescos Own Brand Imitation Red Bull, it's still association with the trademark.

[edited for typo]

Edited at 2008-06-24 08:27 pm (UTC)
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From:cartesiandaemon
Date:June 24th, 2008 08:57 pm (UTC)
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Augh. I think I assumed it would have been "associated with" as in "assuming that red bull had anything to do with it" rather than, "anything to do with each other". This sort of thing is why I see why law can be hard.
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From:atreic
Date:June 25th, 2008 07:53 am (UTC)
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AIUI (which is not very well) it's all about keeping things in their spheres. So if you had a butchers shop called Red Bull, and you could show that nothing your butchers shop did was anything to do with energy drinks or the kudos attached to the name of energy drinks, then that's fine. So you can have a beer trademarked "clarkes" and a shoe-shop trademarked "clarkes" (warning! this is a made up example and may be wrong) and that isn't a problem, because shoes and beer are nothing to do with each other.
From:yrieithydd
Date:June 25th, 2008 02:26 pm (UTC)
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Or indeed a pub called the Red Bull.
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From:cartesiandaemon
Date:June 25th, 2008 02:28 pm (UTC)
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Yes, that's how I understand as well. (There are some nice examples, like how Red Bull Butchers is probably ok, but Fred's SONY sunglasses are probably not, even if Sony never many sunglasses, because they make so many kinds of things someone would assume the sunglasses are Sony's.)

(And IIRC, if you're not providing goods or services, and there's no possibility of looking as if you were officially endorsed, you're not restricted from using trademarks, so apparently Photoshop are just (for good reasons) overzealous about threatening everyone who uses it as a verb. But again, I could not be at all certain.)

However, I was thinking of the other sort of exception, one where you do have a related product, but you're not inviting confusion about who actually produced it. There are several specifically called out, such as using your own name[1], using the trademark to identify the other product as with accessories or spare parts, etc.

I would have no idea if this sort of thing is conceivable (it's certainly normally not worth it), but accept the assurances of the more certain people that it isn't.

[1] Presumably you would still be vulnerable to passing off. And I don't know if you're allowed to change your name to something confusing, I assume not, but don't know why.
From:(Anonymous)
Date:June 25th, 2008 08:26 am (UTC)
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You're thinking of passing off. Trade mark law is specifically intended to be a stricter version of the common law passing-off, where you get greater protection over a more narrowly defined, pre-registered mark.

S.
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From:cartesiandaemon
Date:June 25th, 2008 02:42 pm (UTC)
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Well, yes I was, and that makes sense, but I understood, from no evidence, that the purpose of trademark law was still to protect the mark for the purposes of identifying a product, and granted more specific rights for that purpose? And so not confusing confusion doesn't automatically make it ok, but using it at all doesn't automatically make it not ok??

I'm sure you and geekette are right, although still not convinced it's as obvious as you make it sound.

Airing an advert where you claim your competitor sucks is ok iirc (if you can back it up). Airing an advert where you claim you're similar to your competitor is obviously further towards the line, and using a trademark which incorporates their trademark even more so.
From:(Anonymous)
Date:June 25th, 2008 04:18 pm (UTC)
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Here is where to find the answer: http://www.ipo.gov.uk/tm/t-decisionmaking/t-law.htm
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From:cartesiandaemon
Date:June 26th, 2008 05:09 pm (UTC)
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Thank you. Yeah, I found the link when I was searching before, and now had a serious go at wading through the manuals. And I'm convinced how complicated it is. There were many helpful examples, but I couldn't find any that bore directly on this, even if just to say hadn't come up in court. (I infer you mean, "if the answer is anywhere, the answer is there, so looking is better than talking about it on livejournal", rather than "you're pretty sure the answer is there". If the latter, I'll read more exhaustively, unless you have any more precise directions.)
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