Edward
Bartender
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- London, UK
Not at all, the machinations of TM law are a fascinating, especially in emerging markets. For what it's worth, it could be a lot worse for Aero Scotland. In China, Chivas Regal's brand is owned by a solitary Chinese businessman who refuses to give in. It's not whisky he produces, just cheap branded clothing, bags etc.
Mmn, though here in the UK too he could legitimately register the mark providing it was for different categories of use (as it is) and there was no danger of confusion (c/f cases over garden hosepipes with the mark "Lego", and "Champagne" being used for a bubble bath product...). Of course, if he's clearly duplicating logos and all sorts in a way that is designed to leech off the whiskey mark's owner's business, that wouldn't fly in the UK.
It's a popular practice known as trademark squatting, and basically a form of blackmail: "Pay us handsomely, and you get the rights to your name back, otherwise its a lengthy and expensive legal battle with no guarantee of a positive outcome".
Yeah... they're likely to get hammered in the courts (cybersquatters who register TMs as URLS are now dealt with under criminal law), but the hassle....
The problem is that in China it's not whether you can prove you're the rightful owner that counts, it's a case of the first person to lodge the trademark gets them - neither Justin Bieber, Oprah Winfrey or Facebook own their own brands over there.
Yes, it works that way to a greater extent out there... Same in a lot of places, though to some extent - as it is for patents too. The basic problem is that traditional legal mechanisms still have not (and in some cases cannot) step from the nation state level to a globalised market place.
Also, the Chinese are very fond of their luxe brands - and this is where Aero might want to take notice - and the likes of Hermes are locked in a never-ending cycle of legal battles trying to prove that their brand was well-known before it was registered and therefore theirs, which is not as easy as you would imagine.
But here is the kicker: if you do start a legal challenge, you have to keep going with it as the case progresses through the court system with various appeals etc. You can't lose in one court, go away and have a think about it, and resume your challenge. If you get off the treadmill, then you back to the start of the process, which makes it difficult for small companies to tackle the problem once it starts.
A lawyer I spoke to about this, I'm normally a journalist when not considering my Aero purchase, described it as the "Wild West" for TM law, and that any company even just considering of expanding there, or with a product that could be counterfeited over there would be mad not to do it asap.
It's a fascinating place on so many levels - their legal system is bureaucratic beyond belief (the European Commission has nothing on them!). The biggest challenge for IP is cultural: it's simply, in the grander scheme of things, an alien idea in China for the most part. Fast changing as they have not so much embraced capitalism as taken it in a headlock and made it their, uh, subservient. It will take time, but it is interesting to see the influence, for better and worse, of Western culture in China (at least in the big cities - as anywhere, the poor rural areas will change little in just a few decades) - law (China now has an independent legal right of privacy, totally devoid of any connection to libel, as of 2010, emergent Data Protection laws on a very European model (if limited by sector, a very US approach, rather than an over-arching scheme). All fascinating stuff. The IOC (whose chief interest is always the $$$...) put a lot of pressure on ahead of the Games in 08 for Beijing to clamp down on IP violation. They are getting there, but slowly. Of course, an awful lot of the problem is a response to a (Western) market... Shame, as China has so much going for it in terms of skills, I'd love to see more of their great homegrown stuff getting out there. I've never seen so much choice / variety as in a Chinese electronics store. They even have a smartphone that is basically a counterfeit iPhone in appearance, but actually offers far superior functionality to Apple's product...
Sorry, yes, it did occur to me as I posted the message that it was rather long... hopefully, come Friday when I return from Gala, I'll have relevant stuff to post.
Keeps it visible in anticipation of Friday, no?