Rihanna wins rights to her image over Topshop

Rihanna_(6777125510)
By Eva Rinaldi CC-BY-SA-2.0], via Wikimedia Commons

No, this isn’t about a tabloid newspaper controversy involving the rather racy Barbadian pop star. Instead it is about a recent High Court case where Rihanna took on the high street fashion chain Topshop over the use of unauthorised photos of her on their T-shirts.

The dispute centred on the issue of ‘passing off’, a fascinating aspect of Intellectual Property law due to the way it depends, not on some arcane legal technicality, but on what an ordinary person would think.

During my seven years working in the Business & IP Centre I have learnt that Intellectual Property can be immensely technical and complex, but also has aspects that rely on good old-fashioned common sense.

The test for passing off is quite simple, would an ordinary person think the item they are buying was either produced or authorised by someone other than who they thought it was. Wikipedia defines it as; The law of passing off prevents one person from misrepresenting his/her goods or services as being the goods and services of the claimant, and also prevents one person from holding out his or her goods or services as having some association or connection with the plaintiff when this is not true.

Not surprisingly the most frequent cases of passing off tend to involve household brands. In April Which? magazine conducted a survey that found ‘a fifth of Which? members have bought an own-label product by mistake because it looked so much like a big brand. They found more than 150 own-label products they thought borrowed elements of their packaging from branded competitors. Own-label ‘copycat’ products: can you spot the difference?

One of the most well-known involves the best-selling dandruff shampoo brand Head & Shoulders. They have taken numerous supermarket chains to court for producing own label shampoos which are too similar to the their brand. The supermarkets tend to mimic the shape of the Head & Shoulders bottle, their colours and font styles. Each time the supermarkets lose the case, they go back to their designers and make slight changes to their bottles, leading to another round of court action.

Head&Shoulders_vs_Boots

Next time you are in a supermarket, have a look along the shelves and see if you can see any ‘look alike’ packaging from own label brands. In my experience cereal boxes make for rich pickings. Put yourself in the shoes of the busy shopper (or in my case reluctant shopper) rushing along the aisles with only time to glance at the packages as they zoom past. It is all too easy to grab the ‘wrong’ one and drop it into your basket.

In the case of the T-shirt with Rihanna’s photo, the judge Mr Justice Birss said the “mere sale” of a T-shirt with an image of a celebrity did not automatically amount to passing off. But in this instance he thought that a “substantial number” of buyers were likely to have been deceived into buying it because of a “false belief” Rihanna had authorised it.

He said it was damaging to her “goodwill” and represented a loss of control over her reputation in the “fashion sphere”. It was for Rihanna not Topshop to choose what clothes the public thought were endorsed by her.

 

Anorak – now a cool brand and a Success Story

anorak_logo I have blogged in the past about the importance of using a ‘made-up’ name for your trademark, but there are other ways to establish a distinctive but protected presence in the market place.

I was recently helping a couple of customers in the Centre find some useful market research reports on home wares. In conversation I discovered they were the founders of Anorak, a company who make and sell ‘functional products inspired by the great outdoors’. I also learned that we had helped them along their journey to success over the last four years, so they qualify as one of our Success Stories.

For me, the story here is the ingenuity of taking a widely used slang term with negative connotations, and subverted it into something cool and trendy.

trainspotter
Source: http://commons.wikimedia.org/wiki/User:Mattbuck

According to Wikipedia the term anorak came from the Observer newspaper’s description of UK trainspotters, based on their preferred form of clothing. Allegedly members of this group often wore, the by then very unfashionable anorak jackets, when standing for hours on chilly railway station platforms noting down details of passing trains.

However according to the Guardian Newspaper’s Notes and Queries column, the term was was originally created by Radio Caroline Disk Jockey Andy Archer in the early 70′. He used the word anoraks on air, to describe the boatloads of fans who came out to visit the pirate radio ships anchored off the Dutch coast.

During the 1980’s it became a general derogatory term for a someone with an obsessive interest in unfashionable and largely solitary interests. 1980’s UK rock group Marillion called one of their albums Anoraknophobia, referring to the long running in-joke that Marillion fans were sometimes called freaks or anoraks.

isle of wight computer geek iow
www.theisleofwightcomputergeek.co.uk

In the United States the term geek or nerd is often used instead, but is not associated with a particular item of clothing as far as I am aware. The exception might be the wearing of large unfashionable glasses. The US based company GeekSquad have also attempted to exploit the label to their own advantage.

The word anorak is derived from Greenland Eskimo ‘anoraq’, used to describe a waterproof jacket, typically with a hood, of a kind originally used in polar regions.

I am aware that this post may be in danger of straying into anorak territory itself with this level of obsessive detail, so I will stop here.

 

Anorak_fox_mugAbout Us

Introducing Anorak. A British brand with its heart planted firmly in the great outdoors. Inspired by childhood camping adventures (in a bright orange campervan), Anorak’s founder and Creative Director Laurie Robertson uses striking silhouettes to bring a touch of fun and whimsy to homewares and outdoor lifestyle accessories.

From Kissing Rabbits to Proud Foxes, Anorak’s animal designs are bold, bright and a good deal less timid than their real life relatives. But looks aren’t everything, so the entire Anorak product range has function at its heart. The wash bags are wipe clean, the sleeping bags have leg room a plenty, the picnic blankets are light enough to carry on the longest of country strolls. So if you’re a fan of the great outdoors (even when you’re indoors) and think fun should follow function, remember to pack your Anorak.

Victoria Beckham aka Posh Spice versus POSH football

Victoria_Beckham_2010
Source Wikimedia

Following on from my post on Cara Delevingne the brand, I had a look at Victoria and David  Beckham and their brands, as they have been in the news a lot recently after their return to the UK from California.

Victoria Beckham has always been clever in business, and sensibly attempted to trademark the term Posh (her nickname in the Spice Girls) early on.

However, her application was contested by Peterborough Football club who were able to prove they had been known as The POSH since the 1920’s.

Naturally after winning the court case, the club went into action and registered The POSH at the IPO (Intellectual peterborough-unitedProperty Office). However, they seem to have got a rather carried away, and instead of choosing one or two relevant business classes from the 45 Nice scheme like normal, they paid for an amazing 28 classes (see below for details).

So although they are making good use of class 25 for their t-shirts and scarves. I’m wondering how they are planning to exploit class 13 Firearms; ammunition and projectiles or class 34 Tobacco; smokers’ articles; matches. Perhaps they will surprise their fans and branch out into cigarettes.

the_posh_shirtVictoria bounced back from this initial set-back and has successfully established her Victoria Beckham brand in the key luxury product categories of sunglasses, scent and houte couture. According to TheRichest.org her business is currently worth £30 million.

The_POSH

 List of goods or services

Class 03:
Detergents; bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; dentifrices; antiperspirants; deodorants for personal use.
Class 08:
Hand tools; hand operated implements; razors.
Class 09:
Apparatus for recording, transmission or reproduction of sound or images; optical or magnetic data carriers; recording discs; video recordings; automatic vending machines; calculators; data processing equipment; computers, computer programs; computer games; prerecorded discs and tapes; protective clothing; and parts and fittings, all included in Class 9 for any of the aforesaid goods.
Class 11:
Apparatus for ventilating, water supply and sanitary purposes; and parts and fittings, all included in Class 11, for any of the aforesaid goods.
Class 12:
Vehicles; apparatus for locomotion by land, air or water; and parts and fittings, all included in Class 12, for any of the aforesaid goods.
Class 13:
Firearms; ammunition and projectiles; explosives; fireworks.
Class 14:
Cufflinks; watches and clocks.
Class 15:
Musical instruments; electronic musical instruments; and parts and fittings, all included in Class 15, for any of the aforesaid goods.
Class 16:
Publications; pens, pencils, writing instruments; playing cards.
Class 17:
Rubber, gutta-purcha, gum, mica; goods made of any of the aforesaid materials; plastics in extruded form for use in manufacture; packing, stopping, insulating and packaging materials; flexible hoses and pipes, not of metal.
Class 18:
Bags, sports bags.
Class 20:
Garment hangers.
Class 21:
Household or kitchen utensils and containers (not of precious metal or coated therewith); combs; sponges; brushes other than paintbrushes; articles for cleaning purposes; steel wool; glassware, porcelain and earthenware, all included in Class 21; mugs, tankards, ashtrays.
Class 24:
Textiles and textile articles; bed and table covers; bedding.
Class 25:
Clothing; articles of outer clothing for men, women and for children; headgear; ties.
Class 26:
Cloth badges; badges not of precious metal.
Class 27:
Carpets, rugs, mats and matting; linoleum and other materials for covering existing floors; floor and wall tiles; wall hangings not of textile; wallpaper.
Class 28:
Toys, games and playthings; gymnastic and sporting articles; articles for use in playing football.
Class 29:
Meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jellies, jams, fruit sauces; eggs, milk and milk products; edible oils and fats; prepared meals, goods of Class 29 predominating.
Class 30:
Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery, ices; honey, treacle; salt, mustard; vinegar, sauces (condiments); spices; ice; prepared meals, goods of Class 30 predominating.
Class 31:
Agricultural, horticultural and forestry products and grains included in Class 31; live animals; fresh fruits and vegetables; seeds, natural plants and flowers; foodstuffs for animals, malt.
Class 32:
Beer, mineral and aerated waters and other non-alcoholic drinks; soft drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages.
Class 33:
Alcoholic beverages other than beer.
Class 34:
Tobacco; smokers’ articles; matches.
Class 36:
Insurance services; financial affairs; monetary affairs; banking services; credit card services; debit card services; exchanging money; investment services; financial sponsorship.
Class 38:
Telephone and telecommunication services; rental of telephone and telecommunication equipment.
Class 41:
Providing of training; entertainment; sporting and cultural activities.
Class 42:
Computer programming; snack bar services; news reporter services; security guard services; crowd control services.
Class 13:
Firearms; ammunition and projectiles

Protecting Cara Delevingne the brand

Cara_Delevingne
Source Wikimedia Commons

I was surprised to see a whole page of a recent Evening Standard devoted to UK and European trademarks.

If you have read this blog before you will know that I consider trademarks to be the most significant form of long term intellectual property protection for most businesses.

In the case of a celebrity such as current top model Cara Delevingne the motivation is often as much about protecting you name from commercial abuse, as profiting from it.

When choosing to register a trademark with either the IPO (Intellectual Property Office) in the UK or the OHIM (Office for Harmonisation in the Internal Market) in Europe you have to choose which of the 45 Nice classes are relevant.

The OHIM database shows Delevingne has applied for four classes at a cost of 1,050 Euros. Not surprisingly many celebrities have registered their names over the years. Only last year the singer Beyoncé tried to trademark her daughter’s name Blue Ivy, but discovered a wedding planning business had pre-empted her.

 

 

onsie
An example of a onsie

According to the Standard, Delevingne’s only aspiration so far is to produce her own brand of onesies. But perhaps these small beginnings could spawn a worldwide fashion brand.

The author of the article Kara Dolman (Kara with a K), was inspired by Delevingne to register her own trademark Kara D. Sensibly she first checked the IPO database (something we often help with in the Business & IP Centre), and chose class 25 covering fashion goods at a cost of £170.

Once the application gets through the two month period allowing for objections, Dolman will be free to pursue her dream of Kara D branded socks. However, I feel obliged to point out that if she doesn’t do so, her trademark will lapse after five years. People often forget that trademarks are designed to protect actual commercial activities, rather than just as a block to others.

Disney forces ‘Passing off’ company to destroy ‘mockbusters’

A whole half-page story in tonight’s Evening Standard about a firm who have been creating poor imitations of Disney blockbuster films.

Brightspark Productions Ltd (not to be confused with Brightspark Studios who have updated their homepage with the message below) have been forced by the courts to destroy their infringing films.

Important_Notice

Passing off is nicely defined by Wikipedia:

The law of passing off prevents one person from misrepresenting his or her goods or services as being the goods and services of the claimant, and also prevents one person from holding out his or her goods or services as having some association or connection with the plaintiff when this is not true.

In this case parents were buying DVDs such as Tangled Up and Braver below, and finding their children were disappointed with the films inside the cases. They didn’t come close to the Disney level of quality of storyline or animation.

Brightspark’s managing director Jeremy Davis seemed relatively unrepentant when he said: “I really believed no one in their right mind would buy Braver thinking it was Brave. It was on sale for £2-something in Tesco. You’ve never seen a Disney title for anything near that. I obviously wouldn’t want any kids upset, but the feedback we get is our titles are cheap and cheerful.”

Tangled_vs_Tangled_Up

Brave_vs_Braver

Apple is the most successful brand in history because it is meaningless

ohyo_bottleDuring this years Global Enterprise Week I finally had a chance to catch-up with Guy Jeremiah one of our Success Stories.

Although his collapsible bottle was becoming a great success in the UK under the brand Aquitina, Guy was advised he should change its name before taking on the United States market.

Unfortunately Aquatina is quite similar to Aquafina, a brand of bottled water owned by PepsiCo. Naturally Guy’s advisor was concerned that the cost of going through the courts would bankrupt the business, even though he would win the case.

So a new name was needed for the brand, and the advice was to use a made-up word. By definition, no one would be able to claim ‘prior-art‘ with a newly invented name. After much experimenting Guy and his team came up with the name ohyo (pronounced yoyo).

We had a chat about the importance of the Ronseal (says what it does on the tin) approach to a name, versus the advantages of using anonymous name like ohyo. My feeling is that a descriptive name is great when you are starting out, such as Man and Transit Van. But you never really know where your business will go, or how diversified it will become. In which case your expressive name can become unhelpful. For instance Carphone Warehouse, is no longer a warehouse and doesn’t sell phones for cars.

In the case of Apple Computer, the name was effectively pulled out of a hat the day before it was needed for company registration. Its generic nature meant that once the Computer bit was dropped, the company was free to make anything they liked and stick an Apple logo on it.

According to Walter Isaacson’s recent biography of Steve Jobs, “I was on one of my fruitarian diets,” he explained. “I had just come back from the apple farm. It sounded fun, spirited, and not intimidating. Apple took the edge off the word ‘computer.’ Plus, it would get us ahead of Atari in the phone book.” He told Wozniak that if a better name did not hit them by the next afternoon, they would just stick with Apple. And they did.

You may notice a similar looking collapsible bottle at the checkout of you local Marks & Spencer branch, as ohyo have licensed their product to M&S.

ohyo_bottles

 

 

 

Yamasaki YM125 motorbike – the ultimate in brand flattery

Yamasaki--logoThey say imitation is the sincerest form of flattery, and I think the Yamasaki YM125 may well be the ultimate expression of that in the biking world. Yes, I’m back on my favourite topic of motorbikes again, but this story is all about trademarks and branding.

This rather unexpected brand name takes me back to my early youth, when the British Bike industry still ruled the world, but Japanese imports to the UK were just beginning. Needless to say the old British Bikers would have nothing to do with these young upstarts from Yamaha, Kawasaki, Suzuki and Honda. Their short-sighted criticisms would often be expressed in dismissive pithy phrases such as ‘I wouldn’t be seen dead on one of those Jap-crap Yamasakis’.

So it is something of an irony that China is beginning its inroad to the established Japanese market hegemony with this portmanteau word based on two of the biggest Nipponese brands. Even more so, the bike spearheading the attack is a copy of the best-selling Honda CG 125. You can make your up own mind how much of a facsimile the YM125 is, by looking at the photos below.

Although not yet available in the UK,  Bike Magazine recently imported one in ready-to-build crated form. After two hours putting it together they weren’t entirely impressed by the build quality, but they were by the on the road price of £896, and the 95 miles a gallon fuel consumption.

Certainly Richy1986, who posted this critical review on Review Centre listing 25 faults, was not impressed with his bike. Yamasaki YM125-3 – Cheap Rubbish!!!

Yamasaki--125-3

Honda-CG-125

 

 

Royal Diamond Jubilee, Olympic and Paralympic souvenirs

diamond_jubilee_rain_050612-matt-web_2239104aIt has been quite a summer in Britain this year, and I’m not just talking about the weather.

First we had lots of celebrations and events to mark the Queen’s Diamond Jubilee. The biggest was the rain lashed Thames Diamond Jubilee Pageant, with 1,000 boats assembled from across the world. Once again the Telegraph cartoonist Matt (left) summed it up perfectly.

Then we had the London 2012 Olympic games, closely followed by the Paralympic games (not ParaOlympics as some thought).

In keeping with the business nature of this blog, I’ve been keeping an eye out for memorable memorabilia for these three ‘once in a life-time’ events.

maamiteI think my favourite has to be the Ma’amite jar adapted from the long-standing Marmite brand. It’s a bit cheeky, but not too disrespectful of the Queen. And it seemed to find favour with supermarket buyers, as it seemed to appear in everywhere during June. In case you bump into her Majesty, you will need to remember it’s pronounced Mam as in Jam, not Ma’am as in arm.

A rather less respectful, but also best selling product was the Diamond Jubilee Sick Bag. This was a natural follow up to graphic artist Lydia Leith’s unusual souvenir to mark the royal wedding between Prince William and Catherine Middleton in 2011. There is a strong tradition of not taking those in power too seriously in the UK, so it was not such a surprise to see this novelty item become something of a best-seller.

Diamond_Jubilee_sick_bag

Waving_QueenI actually prefer the Waving Queen toy, whose solar power handbag meant she would give a proper royal wave whenever the sun came out. I was given one as a present, so took her on holiday to France where she made a great impression on the local gendarmes. We were even given a formal salute, and a french accented ‘God bless her Majesty’, as we drove through a police road block in Normandy.

We spent the holiday trying to perfect the energy saving royal wave twist of the hand.

Waving_Queen_in_Normandy
Waving Queen on tour in Normandy

I think my least favourite item has to be from the Royal Mint in the shape of these specially produced five pound coins. For some strange reason they have chosen a particularly grumpy looking Queen to go on the back (or is it the front). By the way, how do you call heads or tails, when the coin has only heads?

Queen_Diamond_Jubilee_five_pound_coin

Moving on to the London 2012 Olympics we have a rather motley set of  memorabilia.

Anything that is encumbered by the dreaded 2012 logo is damaged goods as far as I am concerned, even if I have not been taken in by the ridiculous Zionist conspiracy theory.

Olympics_logo

Thanks to the post games sales, I managed to pick up a Wenlock for a knockdown price, so am now in possession of this slightly scary cyclops.

Wenlock

You can read the background to Wenlock and Mandeville on Wikipedia. I tend to agree with the critic claiming that the pair were the product of a “drunken one-night stand between a Teletubby and a Dalek”.

I have to admit I haven’t seen any of these for sale, but the Olympic Condoms story is too good to miss.

Apparently 150,000 free condoms were given to athletes participating at the London Olympics, which is 50% more than at the Beijing Games in 2008. That works out to 15 condoms for each of the 10,500 competitors who stayed in the Olympic Village.

olympic_condom

olympic_condom_advert

At the other end of the cost spectrum are signed framed photo montages of previous Olympic champions. For example one signed by Kelly Holmes, Daley Thompson, Steve Redgrave, Seb Coe and Chris Hoy is a snip at £1,000.

If you fancy an umpire’s chair or other more practical souvenir of the games such as a super-long bed, just visit Remains of the Games website.

Adam_Hill_GamesmakerI have really struggled to find any specific Paralympic souvenirs, so I think I will have to go with the knitted Adam Hill. Adam was the host of The Last Leg, the surprise hit TV show of the Paralympics.

A fan of the show decided to create a knitted Adam Gamesmaker and to auction it on eBay for charity. Thanks to extensive use of Twitter on the show, the auction went viral and when last heard the bid price had exceeded £30,000.

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Postcript:

It seems as though I wasn’t the only one to be worried by Mandeville and Wenlock. Although on the positive side perhaps my £2 purchase above will be a collectors item in the future. How Mandeville and Wenlock derailed Hornby.

Arganic Oil a niche Success Story

Arganic_Argan_OilDespite being a ‘jack of all-trades and master of none‘ librarian, I have to admit to not having heard of Argan Oil before. But thanks to Dana Elemara the founder of Arganic I now know much more than I did.

According to Wikipedia Argan oil is a plant oil produced from the kernels of the Argan tree. It is found in Morocco, and is valued for its nutritive, cosmetic and numerous medicinal properties.

The Arganic Oil website expresses it more evocatively:

Argan oil is one of the healthiest and rarest oils in the world coming from the UNESCO protected argan tree. Often nicknamed ‘liquid gold’ this oil was the Berber people’s secret for centuries

It takes approximately 15 hours and 30kg of fruit to produce just 1 litre of argan oil. This lengthy process involves skilled handwork that has been passed down from generations.

In late summer the argan fruit ripens and falls to the ground where it is gathered. It is then laid out in the sun to dry. To make the oil, the dried outer fruit is first removed, then, using traditional artisanal techniques involving stones, the seeds are extracted from the hard inner shell.

Argan TreeUp to this point everything is done by hand, furthermore it is only women involved and this employment provides not only a good source of income in a poor region but an opportunity for them to gain independence. The process is governed by cooperatives who also give these women access to free education, and use some of the profits of the argan oil trade to benefit the local tribes and communities.

The seeds are then cold pressed to extract the oil. Nothing is wasted in the process, the fruit pulp is fed to cattle and the leftover seed pulp is used as fuel. At Arganic we have strict controls at every stage of production.

Dana had attended a couple of events and courses at the Business & IP Centre, but is still relatively new to the library. But it sounds like we have already been of help.

‘I trademarked my name only after being aware of it through the free IP seminar at the British Library and it was one of the best things I could have done at the start of my business as I have come across and won IP issues since.’

Here is her story:

Dana had heard about argan oil through relatives that were raving about it but found it difficult to get hold of in the UK. It was then that she decided to leave her mathematical and corporate background behind and the idea for Arganic came about. Luckily Dana had friends living in Morocco who put her through to the right people and the more she learned about this oil the more she fell in love with it and the important social impact it plays for women in Morocco.

Update

I’ve just received this exciting update from Dana:

What a lovely post, thank you so much. There have been so many things happen since we last met, details on my last newsletter here, including TV appearances. Also last week my argan oil won a gold award from The Guild of Fine Foods, and today I found out that I won a Shell Livewire Grand Ideas award which gives me £1000 and free PR. They said I achieved the highest points in my category, and am now in the run for Young Entrepreneur of the Year which is announced in November. So I am extremely pleased right now.

I am still visiting the library and recommending the business centre constantly.

All the best, Dana

Arganic founder Dana Elemara
Arganic founder Dana Elemara

The Apprentice hits the mark with gourmet street food

Lucky_ChipThis evening’s Apprentice shows the show’s researchers have their ears to the ground with regard to the latest trend in street food retailing.

Pop-up shops selling gourmet fast food is all the rage in the trendier parts of London these days.

Luckily the Kings Cross development area is just one such place, with its Eat Street, just up the road from the updated eponymous station, and literally across the road from the recently opened University of the Arts.

I have been lured over to this new venture on numerous occasions, despite the relatively high prices compared to traditional fast food outlets. But the food has always been worth it, with a notable spicy burger which had a real bite to it.

As was pointed out during this weeks Apprentice episode, branding is a key element of any enterprise, and some of the stalls in Eat Street certainly have memorable names. My favourites are Daddy Donkey, Well Kneaded Ltd, Yum Bun, Hardcore Prawn, and Eat my Pies.

tongue-n-cheekHowever, I think that Tongue ‘n Cheek needs to find a way make its delicious sounding underrated meat cuts and Italian inspired street food treats, such as Ox cheek with caramelized onions and polenta, a bit more accessible given the queue size I observed the other day.

These names certainly compare favourably to the Apprentice team’s choices of Gourmet Scot Pot and Utterly delicious Meatballs.

Update: August 2012: I’m now a regular at Eat Street as their days and stalls expand all the time. I’ve just had probably the best burger I’ve ever tasted from Tongue ‘n Cheek. It was their Heartbreacker Original burger, made from Ox heart and dry aged beef burger, spicy chimichurri sauce, water cress, cheddar and sour cream. And it tasted amazing.