Bulletin
The Voice of the International Trademark Association
Association Brief in Parody Case Urges
Court to Follow FTDA’s Plain Language
On February 22, 2007, INTA sought leave
to file an amicus curiae brief in Louis Vuitton
Malletier S.A. v. Haute Diggity Dog, LLC.
This case is pending before the U.S. Court of
Appeals for the Fourth Circuit, and appears to
be the first appeal that will address the recent
amendments to the Federal Trademark Dilution Act (FTDA), 15 U.S.C. § 1125(c).
Louis Vuitton objected to a line of dog
toy products sold under the name CHEWY
VUITON that were specifically designed to resemble the trade dress of Louis Vuitton’s luxury
handbags. The district court granted summary
judgment to defendants on all claims, including Louis Vuitton’s claim for injunctive relief
under the FTDA. The court reasoned that
defendants’ use was not likely to cause dilution
because the use constituted a parody of the
LOUIS VUITTON mark and trade dress.
INTA sought permission to participate in
this appeal as amicus curiae because, it argued,
the district court failed to respect the plain
language of the FTDA in two important ways.
First, the district court erred by concluding that
the CHEWY VUITON line of products was a
protected parody without considering language in
the statute that restricts use of the parody defense
where defendant’s a mark is used “as a designation
of source for the person’s own goods or services.”
15 U.S.C. § 1125(c)(3)(A).
That language was part of a deliberate legislative
compromise intended to balance First Amendment
and intellectual property rights. Under this compromise, use of a famous mark for political, expressive or artistic purposes is generally protected from
dilution liability (for example, former Vice President Walter Mondale’s famous use of the restaurant chain Wendy’s trademark “Where’s the Beef?”
in a presidential debate, or artist Tom Forsyth’s use
of BARBIE dolls in “Food Chain Barbie” photographs), but use of a famous mark for commercial
branding purposes is not automatically protected.
Rather, parodies that use the famous mark as a
brand name for the defendant’s own goods or
services (like the CHEWY VUITON mark in this
See INTA Parody Brief on Page 3
INTA Subcommittee Looks at OHIM
Budget Surplus and Fee Reduction Plan
On December 22, 2006, the European Commission published a Communication on
“The Financial Perspectives of the Office for
Harmonisation in the Internal Market (Trade
Marks and Designs).” The Commission’s
study comes in response to the large revenues
OHIM’s fee structures have been generating—by the end of 2005, the Office had
accumulated surplus cash reserves of over EUR
130 million.
The Communication focuses on the longterm management of OHIM’s finances and
fees policy, and considers that if the current
fee policy remains in place, by the end of 2010
OHIM could have a cumulative cash reserve of
EUR 375 million.
OHIM’s Communication sets forth these
solutions for the budget surplus situation:
• Using the accumulated cash reserve to (1)
finance necessary performance improvements identified by the recent Users
Survey and (2) develop joint partnerships
between OHIM and national offices
• Reducing fees further
• Introducing a regular review of fees
The Communication proposes that the feereview process take place annually. Once OHIM’s
budget surplus or shortage has been determined,
the review will focus on the three most important
basic fees: application, registration and renewal.
Any fee adjustments should be made within a set
fluctuation margin.
In spring 2007, the Commission will present a
proposal to amend its Fees Regulation. The Communication has been sent to the European Parliament and to the Council for their observations.
INTA’s OHIM Subcommittee has reviewed
the OHIM cash surplus situation and proposed
financial and fee review policy and has submitted
or will submit its observations to the Commission,
Member States’ permanent representatives, OHIM
and other interested parties. In making its recomSee OHIM Surplus on Next Page
March 15, 2007 Vol. 62, No. 6
In This Issue
4 Association News
Seminars, Workshops
… and All That Jazz
5 Features
NASCAR and the
Fast Lane of Trademarks
Should You Register Your Trademark
in the Local East Asian Language?
8 Law & Practice
BRAZIL
U.S. Attorney General Speaks on International Enforcement of IP Rights
CHINA
Protection for Well-Known Starbucks Marks Upheld on Appeal
INDIA
India to Accede to Madrid Protocol
SOUTH AFRICA
Changes to Conform to Ninth Edition
of International Classification
UNITED ARAB EMIRATES
Cancellation of Well-Known Mark Registered by Third Party
UNITED STATES
Federal Circuit Affirms Refusal
to Register BOSE Speaker Design Based on Res Judicata
USPTO Proposes to Shorten
Time for Filing Requests for Reconsideration to Three Months
11 Welcome New Members
Association News
OHIM Surplus continued from Page 1
mendations for adopting a new financial policy, the Subcommittee
noted three principles that should be taken into consideration in
whatever plan is adopted:
1) Securing decisions of the highest legal quality and consistency
must take priority over fiscal restraint. Lack of consistency in
decision-making has been one of the most criticized aspects of
OHIM’s services.
2) Fees collected for OHIM services should be used solely for the
operation of OHIM and should not be diverted in any way for
non-OHIM purposes.
3) Services provided by OHIM should respond to users’ requirements with regard to quality and efficiency.
The Subcommittee supports a further reduction of OHIM’s
fees, provided it does not negatively impact OHIM’s services. In
connection with this, the Subcommittee supports the introduction
of a method for regularly reviewing fees, provided that proposals
to increase fees are not made in lieu of efficiently managing the
Office, and that notice of at least 12 months is given before fees
are either increased or decreased (so that trademark owners may
budget for the changes).
The Association’s OHIM Subcommittee also suggests that the
accumulated cash reserve be used to improve the performance and
quality of OHIM’s services. Investments should be made to attract
adequate and experienced professionals at all levels—in particular
those responsible for examining applications. The Office should
be organized—both physically and structurally—so that examiners
may discuss their cases as often as necessary in order to ensure the
timeliness, consistency and high quality of legal decisions. Finally,
the Subcommittee recommends that consideration be given to
establishing a practice of using three-examiner teams for reviewing
each application and to reinstating and enforcing the practice of
using three-examiner teams in opposition proceedings.
I N T E R N AT I O N A L
R O U N D TA B L E S
GERMANY
Topic: Use of Trademarks as a “Mark”
The discussion will concentrate on the consequences of
the OPEL/AUTEC decision of the European Court of the
Justice such as merchandising, internet use and comparative advertising.
Date:
March 29, 2007
Date:
4:00 p.m.
Location:
Kleiner Rechtsanwälte
Alexanderstraße 3
70184 Stuttgart
Germany
Guest speaker:
Prof. Dr. Annette Kur
Max Planck Society, München
To participate in this roundtable, you may register by fax
or e-mail on or before March 22, 2007 to Dr. Ursula Vogt,
Kleiner Rechtsanwälte (by e-mail uvogt@kleiner-law.com or
by fax +49-711-60 17 08-64).
CROATIA
Topic: Mediation
The discussion will focus on the role of mediation in the settlement of intellectual property disputes, the practice of the
Mediation Centre with the Croatian Chamber of Commerce
and the implementation of the Mediation Pilot Programme at
the Commercial Court in Zagreb.
Date:
April 2, 2007
Time:
2:00 p.m. – 5:00 p.m.
You can still register for the most important
event in trademark law!
This year’s Annual Meeting will provide more than
7,500 international trademark professionals with
an abundance of educational and networking
opportunities. Register now to:
• Learn about the issues most relevant to your
practice.
• Network with trademark professionals from around
the world.
• Find solutions to your toughest trademark problems.
And while at the Annual Meeting, be sure to enjoy the
beautiful lakefront, incredible architecture and
cosmopolitan culture in downtown Chicago.
Visit www.inta.org/go/chicago to register and take
advantage of everything INTA’s Annual Meeting has to
offer.
March 15, 2007
Location:
Croatian Bar Association
Koturaška 53/II, Zagreb, Croatia
Guest speakers:
Mr. Srđan Šimac, the President of the High Commercial
Court of the Republic of Croatia
Mr. Krešimir Sajko, PhD, the President of the Mediation
Centre with the Croatian Chamber of Commerce
Hosting Moderator:
Mr. Mladen Vukmir, mr.sc.
Vukmir & Associates
Zagreb
To participate in this roundtable, you may register by fax
(+385-0-1-376-05-55), email (ankica.paro@vukmir.net) or
mail to Ankica Paro, Vukmir & Associates, Pantovčak 35,
10000 Zagreb, Croatia.
For more information visit www.inta.org/go/education to view all of INTA’s roundtables taking place
around the world.
Representing Trademark Owners Since 1878
INTA Parody Brief continued from Page 1
case) may give rise to dilution liability if the use is likely to dilute
the distinctiveness of the famous trademark.
Second, INTA’s brief argued that the district court committed
legal error by not considering any of the amended FTDA’s six factors for determining whether a likelihood of dilution by blurring
exists. Before the recent FTDA amendments, courts around the
country treated the likelihood of dilution question differently,
considering different numbers and types of factors.
In amending the statute, Congress deliberately crafted a list of
factors for courts to consider in addressing the issue, including:
the degree of similarity between the marks, the distinctiveness and
degree of fame of the famous mark, the degree to which the owner
of the famous mark uses it exclusively, whether a party intended
to use a mark to create association with the famous mark, and any
actual association with the famous mark. Although the list is not
exclusive—a court may take into account other considerations
when making its determination of likelihood of dilution—INTA
argued that it would be error for courts to fail to give any attention to the factors, just as other courts have found it to be error
to ignore the non-exclusive list of factors involved in making a
likelihood of confusion analysis in trademark infringement cases.
Courts nationwide should consider the list of factors provided by
Congress to help promote consistency and uniformity among the
courts—an important goal of the dilution amendments.
The Association’s brief was principally written by David H.
Bernstein, INTA Counsel, with colleagues Bruce Keller, Michael
Potenza and Timothy Howard of Debevoise & Plimpton, New
York City. Assisting them were Theodore H. Davis, Jr., chair of
the U.S. Amicus Subcommittee, Kilpatrick Stockton, Atlanta;
Scot Duvall, chair of the Dilution and Well-Known Marks Committee, Middleton Reutlinger, Louisville, Kentucky; Bruce Ewing,
chair of the International Amicus Committee, Dorsey & Whitney, New York City; Anne Gundelfinger, past INTA President,
Intel Corporation, Santa Clara, California; and Steven Pokotilow,
Stroock & Stroock & Lavan, New York City. Ms. Gundelfinger
and Messrs. Bernstein, Duvall, Ewing and Pokotilow served on
the Select Committee on the U.S. Federal Trademark Dilution
Act, which drafted the FTDA amendments that Congress eventually adopted.
The brief is available for download at www.inta.org/downloads/
brief_INTA_LV.pdf.
U.S. ROUNDTABLES
By Timothy T. Howard, Debevoise & Plimpton LLP, New York, NY
www.inta.org
This is the perfect
place to meet with
local colleagues
and discuss
trademark issues
in depth
Topic:
Trademark Dilution Revision Act
Dates:
April 2 – 16, 2007
Held in multiple U.S. cities, these roundtables are designed to fit into your
busy schedule.
Visit www.inta.org/go/roundtables to register and for more information.
Vol. 62, No. 6
Association News
Seminars, Workshops … and All That Jazz
INTA’s 2007 Annual Meeting Project Team, headed by David
Fleming, of Brinks Hofer Gilson & Lione in Chicago, and Michele
Brownlee, of Colibri Corporation in Providence, Rhode Island,
has put together an all-star lineup of educational programs for
this year’s Annual Meeting in Chicago that will entice members to
arrive at the convention center early and stay throughout the day.
The event will have many innovative format changes and more
opportunities for members to catch programs they want to attend.
There will be only two concurrent morning sessions each day—all
aimed at involving members in lively and informed presentations
on subjects of interest to most, if not all, trademark holders and
practitioners.
Built around the theme of Red Hot Chicago Jazz, the many
attractions include the Monday morning Muddy Waters jam session, which will engage participants in an interactive look at the
latest case law on the subject of Internet advertising. We can expect
animated and passionate discussions with panelists from Microsoft,
Yahoo!, Google and AOL, all with firsthand knowledge of online
issues. This session will give participants a number of different perspectives about the concerns and frustrations that many trademark
owners share about keywords and adware on the Internet.
Tuesday morning features a full panel of U.S. District Court
judges from the Northern District of Illinois, who will share their
thoughts on what they are looking for in the way of persuasive evidence in trademark infringement cases and will answer questions
from the audience. This will be the first time INTA has hosted a
full judicial panel, and it is expected that this will be one of the
best-attended programs in INTA’s history.
As usual, Wednesday morning’s review of the U.S. trademark
cases of 2006 is expected to be standing room only. For the first
time, however, the international case law review will be offered in
separate sessions based on geographical areas—Middle East, Far
East, Africa, European Union and Latin America. This will allow
In-House Trademark
Counsel’s Workshop
June 5, 2007
Brussels, Belgium
Don’t miss INTA’s first event
for corporate trademark
owners in Europe!
members to pick the area of greatest interest to them.
Afternoons will be devoted to breakout groups and workshops
for more targeted interests, such as specific industries or geographical areas. Other workshops will deal with more specific
topics than the general sessions. For example, Blues Clues Internet
Investigations, led by moderators from CT Corsearch and Google,
will examine new searching strategies and technologies, with live
Internet access available to all. Don’t forget to bring your laptops!
Also, in I’m Not Walkin’… I’m Talkin’, an interactive workshop on
drafting agreement clauses, participants will actually draft sample
clauses based on a given fact pattern. Then the group will select
and discuss what makes certain drafts better than others.
Many workshops and table topic lunches will cover new territory—such as finance, tax issues and worldwide publicity rights.
Even though this year’s meeting has been expanded to more than
140 table topic sessions, because each table is strictly limited to ten
participants, they are quickly selling out. For members’ convenience, certain workshops and lunch sessions will meet more than
once at different times and dates so that members can get into the
program they desire at a time when they are available.
Most sessions and workshops have already been approved for
CLE credit, and it is expected that all will be approved by the
time of the meeting. Two different ethics workshops have been
approved for CLE credit.
The Annual Meeting Project Team is particularly thrilled to
have as the keynote speaker Chicago’s own Jim Skinner, CEO of
McDonald’s Corporation, who will offer his thoughts and experience in the area of international branding. You deserve a break
today, so don’t miss this chance to hear from the head of one of the
world’s best-known brands.
By: Mary A. Donovan, Donovan & Yee LLP, New York, New York,
INTA Bulletin Features–Members, Benefits & Services Subcommittee
With the assistance of several of the world’s leading authorities in trademark law from
the corporate sector, discover how other trademark owners in Europe protect their
brands and trademarks through proper strategic planning, use of best practices and
past experiences as well as lessons learned the hard way.
At this workshop you can:
• Learn how other trademark owners structure their IP departments
• Hear effective ways to create a brand protection team environment with the
marketing department
• Discover the risks and benefits experienced by other companies with outsourcing
of services
• Pick up tips to streamline internal processes to make your trademark
department’s operation more efficient and cost effective
Enrollment for this unique program is limited to 100 INTA Regular (Corporate)
Members and non-member in-house practitioners to allow for meaningful,
interactive discussion. Early registration is highly recommended as this
program will surely sell out.
Visit www.inta.org/go/education to register and find out more today!
And if you also register for the INTA/OHIM Conference: Community IP
Rights – Present and Future, taking place at the same location the day
before, you can take advantage of the special combination rate!
March 15, 2007
Representing Trademark Owners Since 1878
Features
NASCAR and the Fast Lane of Trademarks
Trademark attorneys, start your engines!
The recent success of the comedy movie hit Talladega Nights
confirms the entrenchment of NASCAR and auto racing in popular culture consciousness. Indeed, we’ve seen a massive acceleration
of the sport into the upper echelon of prime time television, celebrity, and, of course, marketing.
Race telecasts provide NASCAR’s primary media exposure, but
there are also other media opportunities to promote NASCAR and
its drivers. Jeff Gordon hosts Saturday Night Live. Tony Stewart
has a show on Sirius Satellite Radio. Cable television station ESPN
airs an original movie based on the life of Dale Earnhardt.
But with success comes a downside. For trademark attorneys,
much of that downside consists of counterfeiting. In the car racing
world, this insidious practice affects drivers, sponsors and NASCAR itself. Logos, images and names are at risk of being counterfeited. Not only must NASCAR round up trackside hawkers of
fake t-shirts, it must also address the Pandora’s box of the Internet.
For NASCAR attorneys, the solution to problems in the digital
age is a proactive approach.
Tommy Warlick knows that philosophy all too well. Mr.
Warlick was assistant general counsel for NASCAR from 2000
until last year when he became general counsel and vice president
of business affairs for Motorsports Authentics, a company that creates, sells and distributes merchandise at events, in the retail arena
and on the Internet. The company focuses on NASCAR, but also
is involved in other sports. NASCAR and its affiliates, sponsors
and licensees, such as Motorsports Authentics, face unprecedented
counterfeiting problems in the digital age.
“The NASCAR season is 38 weeks long—the longest of all
professional sports—and race events take place throughout the
United States, drawing anywhere from 65,000 to 200,000 fans per
race. Because NASCAR event weekends usually last four days, and
the fans and counterfeiters are there for the duration, we needed
event protection for longer periods of time than most other sports.
Because NASCAR racetrack facilities are usually several hundred
acres in size, we needed broader geographic protection.
“When I was at NASCAR, we worked with racetrack operators
to focus on event merchandise sales, which are still the sport’s merchandising ‘bread and butter.’ We adapted the Trademark Counterfeiting Act of 1984, which provides for a special ex parte process
to seize merchandise, to our specific needs.
“The Act requires a lot in the way of special procedures and
formalities, but we can’t afford not to have its protection. Motorsports Authentics has now assumed primary responsibility for the
operation of this particular trackside enforcement program, and
the beauty is we can get an order once for the entire season at the
beginning of the season that has nationwide effect. The orders
typically granted by the federal courts give us a ten-mile protective
zone around each track facility during its event weekend,” says Mr.
Warlick.
NASCAR’s intellectual property set-up is also unique. Approval
of sponsors, usage of driver’s images and ownership of racing-related marks are issues that require a true teamwork approach. Mr.
Warlick explains racing’s unique place in the sports world.
“We’re unlike any other professional sport when it comes to
intellectual property. For example, the National Football League
owns all the team marks and the union holds licenses for the player
www.inta.org
marks. With NASCAR, everyone owns their own marks: drivers,
teams, sponsors, car manufacturers and NASCAR. As a licensee
seeking to make the most authentic products possible, Motorsports
Authentics must go to each of the rights holders to secure license
rights. Each race team will typically deliver its own team rights and
the rights for its drivers, which are usually secured with the driver’s
services agreements. NASCAR licenses the rights to use the NASCAR logo and series marks, such as the NASCAR NEXTEL CUP
SERIES marks.
“NASCAR also can provide licenses for the contingency sponsor stickers, which are located between the front wheel well and
the driver’s door of each car and are placed to enable a team to
compete for special awards tied to specific milestones achieved during a race, like most laps led or fastest pit stop. We may also need
permission from the participating car manufacturers or equipment
providers, such as Goodyear as the exclusive tire supplier to NASCAR drivers.”
Additionally, NASCAR presents opportunities for trademark
owners to display their marks on the drivers’ uniforms and the
cars, so vigilance is required in ensuring their marks are displayed
properly. NASCAR also employs this same vigilance in protecting
its name, reputation and trademark.
When studios want to produce a movie with a NASCAR theme,
such as Herbie Fully Loaded or Talladega Nights, NASCAR takes
a very thoughtful, deliberate, and protective approach.
Mr. Warlick was at NASCAR during the negotiation process for
Talladega Nights. “When the movie studio engages in a production deal with NASCAR, NASCAR typically provides technical
advisors to help the filmmakers with logistical support and authenticity while ensuring protection of the NASCAR brand and image.
NASCAR is very conscious of its image and intellectual property,
so negotiations for Talladega Nights, like all media properties in
which NASCAR is involved, were very serious concerning approval rights.
“Will Ferrell’s creative team and the studio deserve credit for
taking the process seriously and working in a collaborative effort
with NASCAR. NASCAR was certainly willing to have a sense
of humor about itself, because a big part of the movie was poking
good-natured fun at the racing community, but NASCAR and the
studio also developed a level of trust and cooperation during the
process that served everyone’s best interests.”
Brand owners looking to get involved or maintain relationships
with NASCAR might be interested in the sport’s underlying appeal. Mr. Warlick says, “Not everyone can dribble a basketball
or handle a soccer ball well, but everyone drives a car. Everyone
knows the thrill of punching the accelerator. NASCAR drivers are
driving brand names that we all know. Although the stock cars
competing each week are souped up, they’re more like the cars we
all know and drive, much more so than the rocket ships that you
see in other forms of motorsports. It’s an everyman’s and everywoman’s sport. Some of the drivers are phenomenal athletes and
some are more your average Joe. But they each have a special skill
when it comes to driving that each of us can dream of and envy a
bit every time we put the ignition key into our own cars and back
out of the garage.”
By: David Krell, Law Office of David Krell, Jersey City, New Jersey,
USA, INTA Bulletin Features–Policy & Practice Subcommittee
Vol. 62, No. 6
Features
Should You Register Your Trademark
in the Local East Asian Language?
The question of whether an owner of a Latin script trademark
should register its mark in the local language of a country whose
language in not based on the Latin alphabet is a constantly nagging
one. This question has become particularly salient with respect to
East Asian countries, where economic strength is increasing and
the accompanying IP protection issues growing. Here we consider
this question with respect to the East Asian countries of China,
Japan, and Korea—a significant region in light of the fact that
these countries’ combined populations comprise roughly a quarter
of the world’s population.
Overview
While Korea, Japan, and China each has a distinct language,
there are a number of characteristics about their respective languages that impact how the local-language registration question is
answered. For instance, Korea and Japan both have a phoneticsbased system of writing. Korea uses a phonetic alphabet referred
to as “Hangul,” comprised of consonants and vowels, while Japan
uses two phonetic syllabaries—“Hiragana” and “Katakana”—the
former being more cursive in style and generally used for native
Japanese words, and the latter being more angular in style and
generally used for transliterating words from foreign languages.
In addition, it is helpful to know that both Korea and Japan also
incorporate Chinese characters (referred to as “Hanja” in Korea
and “Kanji” in Japan) into their written languages, but that the
sound of these characters is somewhat different among all three
countries. (Indeed, many Korean and Japanese words themselves
are of Chinese origin.)
By contrast, the Chinese written language is comprised of
characters, each of which not only has a sound, but also a meaning. There is both a “traditional” set of Chinese characters and a
modern, more simplified, set of characters having fewer strokes.
China is currently using the modern version. To complicate matters even further, spoken Chinese has numerous dialects that are
arguably distinct languages themselves, the two main ones being
Mandarin and Cantonese. Further, it is a tonal language, making
the pronunciation of various Chinese characters even more elusive,
particularly to Westerners.
Despite the many differences between the Chinese language on
the one hand, and the Korean and Japanese languages on the other,
the one issue impacting the local-language registration analysis the
most is the “character-based system of writing vs. phonetic-based
system of writing” distinction. This distinction requires that a
similar analysis be employed when determining whether a Latin
script mark should be registered in the Chinese language to that
used when determining whether such marks should be registered
in either the Korean or Japanese languages.
Korea and Japan
As suggested above, a number of similarities between Korea and
Japan lend themselves to employing a similar analysis to answer
the question of whether a mark should be registered in the local
language. First, in both countries English is taught from middle
school through to the end of high school. Therefore, the Korean
and Japanese populations are capable of reading Latin script marks.
Second, both countries employ a phonetic writing system. Third,
March 15, 2007
the existence of a Latin script mark on these countries’ trademark
registers should under local practice serve to block a third party’s
attempt to register a local language transliterated version of the
Latin script mark.
In view of the above factors, if budget is an issue, it is typically
sufficient to register only the Latin script version of the mark in
these countries. To register the local language version of the mark
would be to take a “double protection” approach, assuming a local
language version of the mark will not be used. Of course, if a local
language version of the mark will be used, it should indeed be
registered.
Converting the Latin script mark into the local language where a
phonetic-based system of writing is used typically means transliterating (as opposed to translating) the mark into the local language.
This is true not only in instances of fanciful marks, but also where
the marks have a meaning or connotation as well, inasmuch as
translating the mark into the local language will usually result in a
completely different sounding mark, which would be undesirable
if worldwide brand recognition is being sought.
If a Latin script mark will be converted into Korean or Japanese,
careful consideration should be given to what transliteration will
be used, as it is often the case that a number of spellings are possible. This is the trademark owner’s chance to control how the local
population will pronounce or refer to its mark. Also, particular
consideration should be given to whether the local language version of the mark will have any negative meaning or connotation in
the local jurisdiction. Of course, this should also be taken into account with respect to the original Latin script version of the mark
as well. In that regard, another benefit of registering (and using)
a local language version of a mark is that it fosters contextualized
marketing, thereby strengthening brand recognition.
China
While English is generally taught in China’s largest cities from
middle school through to the end of high school, the majority of
the country’s rural population does not read English and, therefore, the majority of the Chinese population will not be able to
recognize as a word or pronounce a Latin script mark. Accordingly,
it is almost a necessity that a Latin script mark be converted into
Chinese if it is going to effectively serve as a mark.
Moreover, registering a Latin script mark in China does not
necessarily block a third party’s attempt to register a local language transliterated version of the mark. This is because the third
party’s transliterated version of the mark will likely have a different
meaning from the original Latin script version, in addition to a
different appearance. Even among just Chinese character marks,
the “confusing similarity” analysis is a difficult one, inasmuch as
there are many homophonic characters/words, each typically having a completely different appearance and meaning from the other.
The analysis is further complicated by the fact that Chinese is a
tonal language, thereby heightening Chinese persons’ sensitivities
to differences in sound as compared to their Western counterparts.
Accordingly, registering a Latin script mark in Chinese will not
only promote brand recognition, it will also serve as a protective
measure against third party applications for transliterated versions
of the mark.
Representing Trademark Owners Since 1878
The question then becomes what transliteration should be
used? Because written Chinese uses characters that have associated
meanings, a Latin script mark transliterated into Chinese necessarily takes on some kind of meaning, whether direct or implicit,
intelligible or nonsensical. For example, before the Coca-Cola
Company launched its brand in China, local shopkeepers took
it upon themselves to transliterate COCA-COLA into Chinese.
Unfortunately, the transliterations had meanings such as “female
horse fastened with wax” and “bite the wax tadpole.” To remedy
the situation, the company came up with “ke kou ke le,” which in
Mandarin means “permitting the mouth to rejoice.” Thus, when
working in the Chinese language, simple transliteration is not
enough. Consideration must also be given to the meanings of the
Chinese characters to be used and the resulting meaning that will
arise from their combination.
In fact, even translations of slogans that have no need to be limited by the resulting local language sound can turn out to be awkward, as in the cases of KFC’s “finger-lickin’ good” slogan being
translated to “eat your fingers off ” and Pepsi’s “Come alive with
the Pepsi Generation” being translated to “Pepsi will bring your
ancestors back from the dead.” Clearly, the language obstacles are
not small.
While many collectively refer to the countries of China, Japan
and Korea as “East Asia,” as illustrated by the above, each of these
countries has distinct considerations that should be taken into
account when deciding whether to register a Latin script mark in
the local language and, if so, what form the local language version
of the mark should take. Moreover, there are other attendant
considerations too numerous to be included within the scope of
this article, such as whether registrations for transliterated marks
that will not be used in their transliterated forms are susceptible to
cancellation, whether a combined Latin-and-transliterated form of
the mark should be registered, etc. Accordingly, trademark owners
are encouraged to consult with local counsel in each of these jurisdictions prior to brand launch.
INTA / OHIM Conference
Community IP Rights – Present & Future
June 4, 2007
Brussels, Belgium
The International Trademark Association (INTA)
and the Office for Harmonization in the Internal
Market (OHIM) present their third collaborative
conference for trademark practitioners:
Community IP Rights – Present & Future.
Designed for brand owners and advancedlevel professionals in the trademark and related
fields, this one-day conference will provide
valuable insights and tips on enhancing your
success rate in dealing with OHIM, registering
your trademarks and designs, and enforcing
Community Trade Mark rights.
Top reasons to register:
• Exchange ideas with a highly experienced
and authoritative faculty
• Meet with senior officials at the Office for
Harmonization in the Internal Market and
the European Commission
• Learn to make the most of your registered
and unregistered Community Design rights
Visit www.inta.org/go/education to register
and find out more today!
By: Mona Lee, DW Partners, Seoul, Korea, INTA Bulletin Features–
Policy & Practice Subcommittee
For reference, Coca-Cola has chosen to use the
following as transliterations of its COCA-COLA mark:
JAPAN
コカ･コーラ
KOREA
코카•콜라
CHINA
可口可乐
www.inta.org
And if you are a Regular Member or inhouse counsel and also register for the InHouse Trademark Counsel’s Workshop,
taking place at the same location the next
day, you can take advantage of the special
combination rate!
Vol. 62, No. 6
Law and Practice
BRAZIL
INDIA
U.S. Attorney General Speaks on
International Enforcement of IP Rights
India to Accede to Madrid Protocol
On February 9, 2007, U.S. Attorney General Alberto R.
Gonzales delivered an enthusiastic speech on the topic of
international criminal enforcement of intellectual property
rights at the monthly luncheon of the Brazilian Intellectual
Property Association (ABPI) in Rio de Janeiro.
In addressing an audience of more than 100 members of
the Brazilian IP community and local journalists, Mr. Gonzales pointed out that IP rights enforcement has an international aspect that requires cooperation between national governments. According to Mr. Gonzales, as demand for products
increases worldwide, criminal organizations will use legitimate
technologies to promote the widespread distribution of goods
that violate the IP rights of others. Mr. Gonzales underlined
intellectual property’s importance to consumers and economies, and explained how criminals manufacturing and selling
counterfeit products can pose a serious risk to the health and
safety of the public. He emphasized the grave consequences
of IP theft to honest businesses and innocent consumers, and
spoke of the harm to competition and creativity, which results
in terrible losses to the economies of both Brazil and the
United States.
Mr. Gonzales urged the Brazilian authorities to strengthen
global enforcement efforts, ensure strong IP laws, increase
resources devoted to IP law enforcement and increase the
number of U.S.-Brazil operations. At the same time, he commended the Brazilian government for its hard work and dedication in combating intellectual property crime. According to
Mr. Gonzales, seizures at the borders have increased, public
seminars to raise awareness have been developed, training has
continued and there is growing cooperation between Brazilian
enforcement authorities and those of the United States.
After sharing with the audience the progress seen in the
area in the United States, the Attorney General highlighted
the experience of recent multinational operations led by his
country and the important role played by experienced federal
prosecutors placed in key countries as Intellectual Property
Law Enforcement Coordinators. Mr. Gonzales revealed that
his government’s intention was to deploy a coordinator to the
South American region in the near future, and accentuated
the importance of strong domestic enforcement regimes and
international collaboration. He also expressed support and
applauded Brazil’s efforts to increase its capacity in this area,
once more recommending that the Brazilian agencies work
together with their U.S. counterparts.
Contributor: Paulo Parente, Di Blasi, Parente, Soerensen Garcia
& Associados S/C, Rio de Janeiro; Verifier: Rodrigo A. de Ouro
Preto Santos, Momsen, Leonardos & Cia, Rio de Janeiro
March 15, 2007
On February 8, 2007, India’s Union Cabinet approved the country’s
accession to the 1989 Madrid Protocol Concerning the International
Registration of Marks, administered by the World Intellectual Property
Organization.
Announcing the decision, Indian Finance Minister P. Chidambaram
said the government would amend the Trade Marks Act 1999 to enable
India’s accession to the Protocol.
Accession to the Madrid Protocol will provide better protection to
Indian trademark owners abroad and ease the filing of applications
in India by foreign brand owners. It will also facilitate the transfer of
technology through trademark licensing and franchising.
Source: Statement by the Indian Finance Minister, published by India’s
Press Information Bureau (PIB) on February 8, 2007; Contributor: Hala
Shamlawi, Abu-Ghazaleh Intellectual Property, Amman, Jordan
UNITED STATES
USPTO Proposes to Shorten
Time for Filing Requests for
Reconsideration to Three Months
On February 14, 2007, in a notice published in the Federal Register, 72
Fed. Reg. 6984 (Feb. 14, 2007), the U.S. Patent and Trademark Office
(USPTO) proposed to amend 37 C.F.R. 2.64 “to require a request
for reconsideration of an examining attorney’s final refusal or requirement to be filed through the Trademark Electronic Application System
(TEAS) within three months of the mailing date of the final action.”
The six-month period for filing an appeal with the Trademark Trial and
Appeal Board or a petition with the Director remains unchanged.
The USPTO states that this proposed rule change will “streamline
and promote efficiency” because it will facilitate the disposition of an
application’s request for reconsideration prior to the six-month deadline
for filing an appeal. Under the current rule, applicants often file requests for reconsideration and notices of appeal simultaneously, because
the deadline for both is the same. Thus, the new rule’s shortened time
for filing reconsideration requests might eliminate the need for some
appeals or petitions since the examining attorney “normally” will “act
promptly” and reply to the reconsideration request before the end of the
six-month period to appeal or petition.
The proposed rule also requires that requests for reconsideration be
filed through TEAS in order to expedite the examining attorney’s notice
of access to the reconsideration request.
Written comments on the proposed rule change must be submitted
to the USPTO by April 16, 2007.
Contributor: Jessica S. Sachs, Harness, Dickey & Pierce, P.L.C., Troy,
Michigan; Verifier: Kevin W. Grierson, Willcox & Savage, P.C., Norfolk,
Virginia
Representing Trademark Owners Since 1878
CHINA
Protection for Well-Known Starbucks
Marks Upheld on Appeal
On December 20, 2006, the Shanghai Municipal Higher People’s
Court upheld an earlier decision of the Shanghai Second Intermediate People’s Court and ruled in favor of Starbucks. The
appeal court held that STARBUCKS and XINGBAKE (a Chinese
translation and transliteration of STARBUCKS) were well-known
trademarks and ordered a local competitor, Shanghai Xingbake
Coffee Shop Ltd., to cease using a name and logo similar to those
of Starbucks.
The dispute arose when Shanghai Xingbake registered XINGBAKE (the Chinese version of Starbucks) as part of its company
name and was subsequently discovered to be using XINGBAKE
and a logo similar to the Starbucks logo for its two coffee shops.
Starbucks brought legal proceedings against Shanghai Xingbake.
The first instance court held that STARBUCKS and XINGBAKE
in Class 42 were well-known trademarks in China. The court also
held that Shanghai Xingbake was not authorized to use the trademarks and that it was using the trademarks in bad faith. Shanghai
Xingbake appealed the decision.
In the appeal, Shanghai Xingbake argued that the lower court
had erred in determining that XINGBAKE was a well-known
mark. In particular, the company argued that the court had disregarded relevant trademark licensing documentation that showed
that Starbucks had authorized the use of the XINGBAKE mark for
its first store in China only a short time before Shanghai Xingbake
was established. Accordingly, XINGBAKE could not have become
a well-known mark within such a short period of time.
The court disagreed, holding that the trademark licensing
documentation did not necessarily show the exact date on which
Starbucks began using the trademark XINGBAKE. The court also
considered evidence that showed that Starbucks had publicized the
mark before the date shown on the documentation.
Shanghai Xingbake also argued that the prior successful registration of “Xingbake” as part of its company name gave it a legitimate
prior right in the name. However, the court held that Shanghai
Xingbake had not proved that it had the legitimate right to the
name “Xingbake” before the registration. Indeed, the court held,
the company had known that STARBUCKS was a well-known
mark before registering its name and was illegitimately attempting
to take advantage of the reputation and goodwill associated with
the Starbucks name.
Shanghai Xingbake’s appeal included various other assertions, among them that the lower court had erred in ruling that
it had acted in bad faith; that Starbucks, as a large multinational
corporation, had been shown favoritism; and that the lower court
had made errors regarding certain factual issues. The appeal court
dismissed all of these claims.
Shanghai Xingbake was once again ordered to stop using
the name and logo, make a public apology and pay damages of
500,000 yuan (USD 60,000).
This case is an important victory for multinationals like Starbucks, as it demonstrates that the Chinese courts will consider
evidence of publicity and marketing, the length and geographical
scope of the mark’s registration and use and the reputation of the
mark when determining what constitutes a well-known trademark
in China.
SOUTH AFRICA
UNITED ARAB EMIRATES
Changes to Conform to Ninth Edition
of International Classification
Cancellation of Well-Known Mark
Registered by Third Party
South Africa intends to adopt the Ninth Edition of the International Classification of Goods and Services for the purposes of the
registration of marks under the Nice Agreement (Nice Classifications).
According to the regulations to the South African Trade Marks
Act, the Registrar is obliged to publish amendments to the Nice
Classifications in the Patent Journal and shall amend Schedule 3
to the Act (setting out the classification for goods and services)
to the extent that such amendments necessitate an amendment
of Schedule 3. The amendments will apply to all specifications as
of the date of the publication of the relevant notice in the Patent
Journal, which is expected in March 2007.
The Dubai Court of First Instance issued a judgment on January
17, 2007, cancelling a registered trademark that included the word
“Harrods,” which had been registered in the name of Harrods
General Trading. The case was filed by Harrods Limited, UK,
based on the international fame of the trademark HARRODS.
The report of the court-appointed expert from the Ministry of
Economy stated that HARRODS was a well-known trademark
and that there was no reason for the registrant to use the mark in
the United Arab Emirates. The court also rejected the registrant’s
equest to appoint another expert specialized in trademark matters, as the previous expert was a legal researcher at the Ministry of
Economy, the ministry responsible for trademark registrations.
Reporter: Janine Hollesen, Jan S. de Villiers, Cape Town; Verifier:
Stephen Goldberg, Spoor & Fisher, Pretoria
Contributor: Hoda Barakat, Al Tamimi & Company, Dubai; Verifier:
Omar Shteiwi, Regional Intellectual Property Adviser, Middle East,
North & Horn of Africa, Nestlé Middle East FZE, Dubai
www.inta.org
Contributors: Connie Carnabuci and Na Hoom Oh, Freshfields
Bruckhaus Deringer Hong Kong; Verifier: An Xiaodi, An, Tian, Zhang
& Partners, Beijing
Vol. 62, No. 6
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Law and Practice
UNITED STATES
Federal Circuit Affirms Refusal to Register
BOSE Speaker Design Based on Res Judicata
The U.S. Court of Appeals for the Federal Circuit (CAFC),
in In re Bose Corp. (No. 06-1173, Feb. 8, 2007), affirmed the
Trademark Trial and Appeal Board’s (TTAB’s) ruling that Bose’s
appeal of the refusal to register its speaker design was barred by the
doctrine of res judicata.
In 1995, Bose filed an application for a speaker design for “loudspeaker systems.” The mark was described as “an enclosure and its
image of substantially pentagonal cross-section with a substantially
pentagonal shaped top with a bowed edge parallel to a substantially
pentagonal-shaped bottom end.” The proposed mark was identical
to a mark previously considered and rejected by the CAFC on the
basis of functionality. When the TTAB and CAFC were presented
with the identical mark in the present application, they concluded
that the appeal of the refusal to register was barred by res judicata.
Bose argued that the facts and circumstances had changed since
the prior case such that application of res judicata was not appropriate. Specifically, Bose contended that: (1) the “curved front
edge” of its design was not at issue in the prior case, (2) the legal
Welcome New Members
A&S Patents and Trademarks, San Diego, CA, U.S.; Abu Dagga
Intellectual Property (ADIP), Guaynabo, PR, United Arab Emirates; Agency Tria Robit, Moscow, Russia; Akin, Gump, Strauss,
Hauer & Feld, Washington, DC, U.S.; Akin, Gump, Strauss,
Hauer & Feld LLP, Houston, TX, U.S.; Al Mensi Law Firm, Tunis, Tunisia; Altadis, Madrid, Spain; Atilano Fernandez Estudio,
Buenos Aires, Argentina; Baker & Daniels, Washington, DC,
U.S.; Beijing Besthold Intellectual Property Agent Co. Ltd,
Beijing, China, People’s Republic; Betts, Patterson, & Mines, Seattle, WA, U.S.; Blake Cassels & Graydon, Ottawa, ON, Canada;
BLP Abogados, San Jose, Costa Rica; Bureau of Intellectual
Property of Aruba, Oranjestad, Aruba; Burr & Forman LLP,
Nashville, TN, U.S.; Cabinet Laurent & Charras, Ecully, France;
Cabinet Nuss, Strasbourg, France; Casucci Law Firm, Milan,
Italy; CITIC Guoan Group Co., Beijing, China, People’s Republic; Comcast Corporation, Philadelphia, PA, U.S.; Delacour
Law Firm, Copenhagen, Denmark; Deloitte Financial Advisory
Services LLP, Los Angeles, CA, U.S.; D.H. Cavanaugh Associates, New York, NY, U.S.; Electrolux International Company,
Pittsburgh, PA, U.S.; Ella Cheong Spruson & Ferguson (M) Sdn
Bhd, Kuala Lumpur, Malaysia; Enrique Bernat F, S.A., Cornellà
de Llobrega, Spain; FairWinds Partners, LLC, Washington, DC,
U.S.; Freshview Intellectual Property Law Firm, Hanoi, Vietnam; Gifford, Krass, Groh, Sprinkle, Anderson & Citkowski,
P.C., Troy, MI, U.S.; Harrison Goddard Foote, London, U.K.;
Hogan & Hartson, Los Angeles, CA, U.S.; Hunton & Williams, Raleigh, NC, U.S.; Husqvarna AB, Huskvarna, Sweden;
Imperial Oil Limited, North York, ON, Canada; IP-Terramark,
Belize; IP-Terramark, Costa Rica; IP-Terramark, El Salvador;
IP-Terramark, Guatemala; IP-Terramark, Honduras; IP-Terramark, Mexico; IP-Terramark, Miami, FL, U.S.; IP-Terramark,
Nicaragua; IP-Terramark, Panama; Jarquin - Garcia, Managua,
Nicaragua; JC Decaux, Neuilly-Sur-Seine, France; Jones Day,
Dallas, TX, U.S.; Karawani Law Firm, Damascus, Syria; Karema
www.inta.org
standard for determining functionality of trade dress changed with
the Supreme Court’s decision in TrafFix Devices v. Marketing Displays, Inc., and (3) the TTAB erroneously disregarded promotional
materials that do not tout the utilitarian aspects of the mark.
The CAFC did not agree with any of Bose’s contentions, finding
that its prior ruling addressed the functionality of the “bowed front
edge” of the speaker design, which was the same as the “curved
front edge” referred to by Bose. In addition, the court determined
that TrafFix reinforced its finding that Bose’s expired utility
patents, which claim its speaker design, were “strong evidence” of
functionality. Finally, the court found that the promotional materials Bose presented were irrelevant. Although those materials did
not specifically tout the utilitarian advantage of the curved front
edge, they promoted the functional aspects of the speaker design as
a whole, of which the curved front edge was a part.
Thus, the CAFC affirmed the denial of registration.
Contributor: Jessica S. Sachs, Harness, Dickey & Pierce, P.L.C.,
Troy, Michigan; Verifier: Kevin Grierson, Willcox & Savage, P.C.
Norfolk, Virginia
H. El-Madany Law Firm, Tripoli, Libya; Kelong International
Intellectual Property Agency Ltd., Beijing, China, People’s Republic; Keystone Automotive Industries, Inc., Fort Lauderdale,
FL, U.S.; Klos Morel Vos & Schaap Spain SL, Alicante, Spain;
Law Offices of Leon I Edelson, Northbrook, IL, U.S.; Lecome
Intellectual Property Agent Ltd., Beijing, China, People’s Republic; Lehman Lee & Xu, Guangzhou, China, People’s Republic;
Lehman Lee & Xu, Hong Kong, SAR, China, People’s Republic;
Lehman Lee & Xu, Macau, Macau; Lontings & Partners, Brussels, Belgium; Maple Leaf Foods Inc., Mississauga, ON, Canada;
Marchi Legal, Milan, Italy; Meitus Gelbert Rose LLP, Indianapolis, IN, U.S.; Mossack Fonseca & Co., Panama City, Panama;
Nixon Peabody LLP, New York, NY, U.S.; NJQ & Associates,
Manama, Bahrain; NJQ & Associates, Tripoli, Libya; NJQ & Associates, Hay Salam Sale, Morocco; NJQ & Associates, Muscat,
Oman; NJQ & Associates, Doha, Qatar; NJQ & Associates,
Dubai, United Arab Emirates; Patentanwaltskanzlel Reinhardt,
Grassau, Germany; Peak Innovations Inc., Richmond, BC,
Canada; Pearl Cohen Zedek Latzer, LLP, New York, NY, U.S.;
Rackspace Managed Hosting, San Antonio, TX, U.S.; rwzh Rechtsanwalte, Munich, Germany; Ryland & Associates, Vancouver, WA, U.S.; Sacco, Casseli and Gaona Attorneys, Asuncion,
Central, Paraguay; Salamone, Sansone & Co., Valletta, Malta;
Shiseido International Corporation, Darien, CT, U.S.; Sideman
& Bancroft, San Francisco, CA, U.S.; Sirote & Permutt, P.C.,
Birmingham, AL, U.S.; Sistek Law Group, San Francisco, CA,
U.S.; Spamer Triebel Inc., Cape Town, South Africa; Steptoe &
Johnson LLP, Los Angeles, CA, U.S.; Studio Brevetti Jaumann,
Milan, Italy; Trek Bicycle Corporation, Waterloo, WI, U.S.;
Vaish Associates Advocates, New Delhi, India; Zivko Mijatovic
& Partners d.o.o., Sarajevo, Bosnia-Herzegovina; Zivko Mijatovic & Partners, Skopje, Macedonia; Zivko Mijatovic & Partners
d.o.o., Podgorica, Montenegro; ZMP (Zivko Mijatovic & Partners), Pristina, Kosovo, Montenegro
Vol. 62, No. 6
11
Mark Your Calendars
INTA Bulletin Committee
To contact a member of the INTA Bulletin Committee, send an
email to the managing editor at bulletin@inta.org.
Chair
Mary DeLongis, VF Sportswear, Inc.
Vice Chair
Kay Rickelman, Spoor & Fisher
Feature Articles: Member Benefits & Services
Patrick Gallagher, Fulbright & Jaworski L.L.P.
Feature Articles: Policy & Practice
Patricia Wilczynski Brozek, Wilczynski Brozek Law
Law & Practice: Americas
Janice Housey, Roberts, Mlotkowski & Hobbes, P.C.
Law & Practice: Asia-Pacific
Lindsay Esler, Deacons
Law & Practice: Europe and Central Asia
Claus Eckhartt, Bardehle Pagenberg Dost Altenburg Geissler
Law & Practice: Middle East and Africa
Stephen Goldberg, Spoor & Fisher
staff
Executive Director
Alan C. Drewsen, International Trademark Association
Director, Publishing Randi Mustello, International Trademark Association
Managing Editor, INTA Bulletin
James F. Bush, International Trademark Association
Associate Editor, INTA Bulletin
Joel L. Bromberg, International Trademark Association
Designer
Jesse Riggle, International Trademark Association
officers & counsel
President
Dee Ann Weldon-Wilson, Exxon Mobil Corporation
President Elect
Rhonda Steele, Mars, Incorporated
Vice President
Richard Heath, Unilever P.L.C.
Vice President
Heather C. Steinmeyer, Blue Cross and Blue Shield
Association
March 15 – 30, 2007
Trademark Administrator Workshops: Anticounterfeiting
Various U.S. cities
April 2 – 16, 2007
Roundtable: Trademark Dilution Revision Act
Various U.S. cities
April 4, 2007
Mediation Seminar
Paris, France
April 9 – 20, 2007
Alternative Dispute Resolution Online Competition
For EU law students
April 28 – May 2, 2007
129th Annual Meeting
Chicago, Illinois
June 4, 2007
INTA–OHIM Conference 2007
Brussels, Belgium
June 11 – 22, 2007
Trademark Administrator Roundtable: Proper Trademark Use
Various U.S. cities
September 30 – October 3, 2007
Trademark Administrators Conference
Long Beach, California, USA
Exhibitions and Sponsorship
To inquire about sponsorship or exhibition opportunities for INTA’s
events, visit www.inta.org.
Although every effort has been made to verify the accuracy of items carried in this
Treasurer
Gerhard R. Bauer, DaimlerChrysler AG
newsletter, readers are urged to check independently on matters of specific concern or
Secretary
Gregg Marrazzo, Kimberly-Clark Corporation
and INTA staff for content but also accepts submissions from others. The INTA Bulletin
Counsel
David H. Bernstein, Debevoise & Plimpton LLP
any item offered to it for publication.
INTA Department Email Addresses
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Publications: publications@inta.org
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Public Relations: publicrelations@inta.org
Roundtables: roundtables@inta.org
Sponsorship & Exhibitions: sponsorship@inta.org
The Trademark Reporter®: tmr@inta.org
© 2007 International Trademark Association
interest. The INTA Bulletin primarily relies on members of the INTA Bulletin Committee
Editorial Board reserves the right to make, in its sole discretion, editorial changes to
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