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Author Topic: Obama Fried Chicken  (Read 540 times) Average Rating: 0
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Justin Kissel
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« on: October 10, 2011, 05:25:12 PM »

Obama Fried Chicken forced to change name to UFO amid KFC threat

A fast-food restaurant in China has had to change its name from Obama Fried Chicken to UFO after KFC threatened legal action, saying the logo infringed on its trademark rights.

The restaurant sign mimics KFC's famous Colonel Sanders logo - but instead of the colonel, it's Barack Obama dressed in a bowtie and suspenders, accompanied by the tag-line: 'We so cool, aren’t we?'...
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Justin Kissel
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« Reply #1 on: October 10, 2011, 05:26:28 PM »

First McDowell's, and now this?

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« Reply #2 on: October 10, 2011, 06:50:08 PM »

Imitation KFC's have been around a long time there. I wonder why they're getting interested now.

There's still Ukraine's McFoxy:

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« Reply #3 on: October 10, 2011, 08:41:28 PM »

I am not a lawyer, so perhaps Akimori will chime in, but I have a hard time imagining this as infringing on KFC's trademark.  I mean, it looks very different from the Colonel - Obama is not an elderly white man.
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Justin Kissel
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« Reply #4 on: October 11, 2011, 01:22:23 AM »

I mean, it looks very different from the Colonel - Obama is not an elderly white man.

O rly?
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akimori makoto
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« Reply #5 on: October 11, 2011, 03:52:07 AM »

I am not a lawyer, so perhaps Akimori will chime in, but I have a hard time imagining this as infringing on KFC's trademark.  I mean, it looks very different from the Colonel - Obama is not an elderly white man.

Obviously, I am not an American lawyer, but my experience of trade mark infringement in Australia is that whether the mark in question is ruled to be infringing largely depends on what mood the registrar is in on the particular day the question comes before him/her.

Personally, I don't think this one infringes. In Australia, it is not enough to simply show that the competing mark rips off your mark's nifty design work and aesthetic: you must show either that the two marks being allowed to co-exist sows confusion in the market or that the two competing marks are so identical in substance as to be ruled variations of one another.

I will declare my bias: I think intellectual property laws have become too robust and should be somewhat wound back.

If you're interested, what follows is a copy/paste from a memo I drafted to myself a while back. All references to statute are to the Trade Marks Act 1995 (Cth.).

---------------------------------

In Australia, a trade mark can be ruled infringing if it is "likely to deceive or cause confusion". Whether a mark is likely to deceive or cause confusion is to be judged as a matter of fact, by reference to the ordinary individual, not a person well-versed in the particular trade in question: Australian Woollen Mills v FS Walton (1937) 58 CLR 641, Newmans v Pinto (1887) 4 RPC 508.

Marks can be held to be likely to deceive or cause confusion in four ways:
(a)   the mark suggests that the goods/services are of a particular quality;
(b)   the mark falsely suggests a geographic origin;
(c)   the mark falsely suggests a particular affiliation; and
(d)   the mark is likely to cause confusion vis-à-vis other marks.

The meaning of the word "connotation" in s.43 has caused some difficulty. It seems to suggest that the trademark is deceptive or confusing because of something external to the mark itself, such as the existence of another mark or some affiliation it has.

Whether a mark is so similar to another that it is likely to deceive or confuse involves a different test to that used to determine whether they are substantially identical.

In Shell v Esso, Justice Windeyer stated that the test for whether two marks are so similar so as to deceive or confuse involves: "not abstract similarity, but deceptive similarity […] It is between, on the one hand, the impression based on recollection of [one] mark that persons of ordinary intelligence and memory would have; and, on the other hand, the impressions that such persons would get from [the other mark]".

If two marks share a common element, that element will be important, but not determinative, in making the decision: Chong v Tonka Corp [1994] ATMO 27.

In Chong, the fact that both marks included use of the suffix –opoly (which was ruled to be a distinctive and rare suffix in the English language) was enough to render the mark in question likely to deceive or confuse.

By way of contrast, in Cooper Engineering v Sigmund Pumps (1952) 86 CLR 536, "rain king" and "rain master", which arguably denote or connote the same notion, were ruled not similar so as to be likely to confuse or deceive.

In Re Woolworths (1998) 42 IPP 49, Woolworths wished to register a mark consisting of the words "Woolworths Metro". The word "Metro" dominated the mark, but the word "Woolworths" was clearly visible in the upper left of the mark. The appeal court ruled that Australians were not likely to confuse the mark with another bearing only the word "Metro". In that case, Justice Wilcox held that, even accounting for the risk of imperfect recollection, the ordinary person would not discount the word "Woolworths", as it is a word familiar to most Australians.

The cases on this point, taken together, suggest that whether two marks are so similar as to be likely to confuse or deceive is a matter of fact to be judged in the particular circumstances of each case.

In Shell Co v Esso Standard Oil (1953) 109 CLR 407, Justice Windeyer held that, in determining whether a mark is "substantially identical" to another mark, they must be considered side by side and the "total impression" of resemblance or dissimilarity considered.  Accordingly, whether two marks are so similar that ownership of one amounts to ownership of the other is a question of fact to be judged in the circumstances of a particular case.

The Act provides mechanisms intended to "catch" marks unacceptably similar to those already registered before registration occurs.  As for the situation where two marks which are substantially similar are both registered, s.23 of the Act provides that:"If trade marks that are substantially identical or deceptively similar have been registered by more than one person (whether in respect of the same or different goods or services), the registered owner of any one of those trade marks does not have the right to prevent the registered owner of any other of those trade marks from using that trade mark except to the extent that the first-mentioned owner is authorised to do so under the registration of his or her trade mark."

The effect of this section is that the owners of registered trade marks are barred from bringing infringement actions against each other, that they would otherwise be entitled to bring.

As noted above, there is significant judicial authority as to the meaning of "substantially identical" and "deceptively similar".  For the purposes of s.23, it does not appear to be relevant that the registrations are in respect of different goods or services.

In the case of Steps Disability v Southern Training and Employment (2009) 83 IPR 173, an owner of a registered mark objected to the registration of a similar mark it contended was deceptively similar, if not identical.  The hearing officer ruled that, in the particular circumstances of that case, it was appropriate to facilitate a full co-existence of both marks on the Register.  The hearing officer cited s.23 of the Act in strong support of this proposition.

In Steps, the hearing officer also ruled that no geographical restrictions should be applied to use of the mark the subject of the application for registration. Notably, in that respect, the hearing officer had regard to the fact that the opponent's reputation in the mark was limited, as a matter of fact, only to Tasmania.

Section 230(1) of the Act provides that, notwithstanding the effect of s. 23, the fact that a mark has been registered does not defeat the rights of a person who can show that use of the mark constitutes a misrepresentation actionable as passing off.

Passing off is a common law tort which pertains to diminution of goodwill as a result of misrepresentation.

In the English case of Erwen Warnick v Townend & Sons [1979] AC 731, it was said that, in order to succeed in an action for passing off in relation to a trade mark, a plaintiff must show that it has goodwill by virtue of its use of its mark, that the defendant has made some misrepresentation and that the plaintiff's goodwill in its mark has been damaged by that representation.  Damage to goodwill includes dilution of goodwill and diversion of trade.

The ordinary remedy for passing off is an award of damages to the plaintiff. Accordingly, s. 230(2) essentially provides a defence to an action for passing off where the requirements of the subsection are satisfied.
« Last Edit: October 11, 2011, 03:52:31 AM by akimori makoto » Logged

The Episcopallian road is easy and wide, for many go through it to find destruction. lol sorry channeling Isa.
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