INDIA: "Bull with or without bull" by Dr Mohan Dewan [RK Dewan & Co]

 

Red Bull AG (Red Bull) filed(*) an application for removal of the word mark YOUR WINGS TO LIFE2 registered in the name of Dr. Reddy's Laboratories Limited (Dr. Reddy’s) before the Intellectual Property Appellate Board (IPAB). Dr. Reddy’s did not appear for the hearing and also failed to file a counter statement. 

Red Bull claimed that it adopted the mark GIVES YOU WINGS in conjunction with its Red Bull trademarks and used it in its promotional and advertising material as well. Red Bull claimed that it has multiple registrations for the mark GIVES YOU WINGS in Class 32. 

Red Bull also claimed that it has adopted the device of wings in its commercials. The concept of an animal/human acquiring wings after consumption of the Red Bull Energy Drink has become exclusively associated with Red Bull. It also claimed that it is the registered owner of the domain name www.givesyouwings.com. 

Red Bull stated that it recently found that the trademark YOUR WINGS TO LIFE is registered in the name of Dr. Reddy’s in respect of goods under Class 09. Red Bull claimed that neither Dr. Reddy’s nor its predecessors ever intended to use the YOUR WINGS TO LIFE mark in India even though an application for the same was filed in the year 2001. Red Bull claimed that Dr. Reddy’s has not used the impugned mark in India since adoption (almost 15 years) and more specifically for at least a duration of 5 years from the date of filing of the rectification. 

It claimed that the non-use of the trademark is clearly indicative of the lack of bona fide on the part of Dr. Reddy’s. It claimed that the said registration is an unwarranted hardship on Red Bull, who has an honest and bona fide user of the trademark GIVES YOU WING. 

It claimed that if the mark is allowed to subsist on the Trade Marks Register it would be depriving Red Bull, of its business. Hence it is a person aggrieved under Section 47 of the Trademarks Act. 

The IPAB held that the points raised by Red Bull have no force as both rival trademarks are neither deceptively similar nor identical. It further held that Dr. Reddy’s mark YOUR WINGS TO LIFE is not the main mark and is a sub-brand. IPAB also clarified that “the question of non-user will arise if the party who is seeking rectification is an aggrieved party and has interest”. It dismissed the petition and held that Red Bull is not a person aggrieved within the meaning of the Trade Marks Act. IPAB also noted that as per the scheme of Trade Marks Act filing of counter-statement is not mandatory in order to decide the rectification

__________________________

(*) ORA/262/2015/TM/CHN 

Food shortages, stockpiling and panic buying ahead of Brexit as reported by the British media: a mixed methods content analysis

 Authors: Paul C. Coleman (Honorary Research Fellow), Fatima Dhaif (Academic Clinical Fellow) and Oyinlola Oyebode (Assistant Professor)

https://app.box.com/s/xda442zjoh1fe92zcwayempfzb2pvfbz

ABSTRACT

Background - Government documents warn that if the UK and EU have not negotiated a trade deal by 31 December 2020 the UK could experience increasedfood prices and possible food shortages.

The media have an important role in influencing recipients’ behaviour by promoting reassurance or anxiety on this issue. This study examines how food supply and demand, in the context of Brexit, has been portrayed by the British media.

Methods - A mixed methods content analysis of articles reporting on food supply and demand in the context of Brexit, in three daily newspapers, between 01 January 2015 and 31 January 2020.

Results – Five themes emerged: food shortages and panic buying (appearing in 96% of articles); food supply chain disruption (86%); economic impacts of Brexit (80%); preparation and stockpiling by the government and food sector (63%) and preparation and stockpiling by individuals (22%).

Conclusion - Government messaging reported by the media sought to reassure the public that here will be no food shortages under a no-deal Brexit. These reassurances contradicted warnings from the food sector and leaked government reports of reduced availability of food items.

 

These 20contradictory messages may have undermined trust in the government, potentially influencing stockpiling behaviour at the individual level.

[This paper is under peer-review].

"Is the nickname protected by law?" by Aleksandra Krześniak

By the judgment announced on October 23rd, 2020[1], the Polish Supreme Court decided on a 10-year-old dispute between Dariusz Michalczewski (a well-known Polish athlete, boxer; using the nickname “Tiger”) and the company FoodCare Sp. z o.o. ("FoodCare"), concerning the nickname "Tiger". The Civil Chamber of the Supreme Court dismissed the cassation complaint of the plaintiff (D. Michalczewski) and upheld the judgment of the Court of Appeal in Kraków. In 2017, the Court of Appeal dismissed the claim for payment of over PLN 21 million for infringement of personal rights.

In the opinion of the Supreme Court, a nickname is not a personal right and is not protected by law like a pseudonym; due to the fact that it does not replace the last and first name, but appears alongside them. As a consequence, FoodCare did not infringe the personal rights of D. Michalczewski by using the name "Tiger" as the name of the energy drinks produced.

Subject of dispute and trademarks

Dariusz Michalczewski claimed compensation from FoodCare for the infringement of his personal rights in the form of the nickname "Tiger" as well as violation of the trademarks registered on his behalf. According to the plaintiff, FoodCare (defendant) sold energy drinks under the name "Tiger" after the cooperation between the parties had ended (termination of the license agreement), i.e. from October 2010 until the end of December 2011, without paying him for the promotion related to the use of the nickname "Tiger". As a result of Michalczewski's statements - who claimed to be entitled to the name of energy drinks "Tiger" - at the end of 2011 FoodCare changed the name of its products from "Tiger" to "Black" and ceased selling goods under the name "Tiger".

As a side note, it is worth noting that both parties are entitled to registered national trademarks: Dariusz Michalczewski owns rights to two word and figurative marks TIGER (R.145637 and R.191973), while FoodCare a word mark BLACK TIGER (R.179222). Interestingly, there are also several word marks TIGER submitted for registration by D. Michalczewski; however, for several years now the characters have the status "Application published" - perhaps the Polish Patent Office is waiting for a civil case to be resolved.

The claim related to the infringement of personal rights and registered trademarks was determined by D. Michalczewski at over PLN 21 million. The boxer has been advertising “Tiger” energy drinks since 2003.

Judgments of the first and second instance courts

The Circuit Court in Cracow by its judgment of October 12th, 2016[2] acknowledged Michalczewski's claim to the amount of PLN 2.4 million; and dismissed it as to the remainder part. In the opinion of the Court, the action of FoodCare was contrary to good practice, especially the principle of "pacta sunt servanda". Additionally, the Court also emphasized that the behavior of the defendant company, which used the image of a boxer in a promotional campaign and then - after termination of the licensing agreement - produces the same drink and claims that name of the product has nothing to do with the plaintiff, cannot be accepted.

Only FoodCare appealed against that judgment. The court of second instance, i.e. the Court of Appeal in Cracow, by a judgment of November 27th, 2017[3] changed the appealed judgment of the Circuit Court in such a way that it dismissed Michalczewski's claim in its entirety. In the opinion of the Court, the contract (here: licensing agreement) does not create a personal right; the word “Tiger” does not constitute a value of social significance and therefore, this designation can be used commonly. The plaintiff filed a cassation complaint with the Supreme Court against the judgment of the second instance court.

Importantly, both the circuit court and the court of appeal took the position that the plaintiff had not demonstrated any violation of trademark rights (the infringement has not been proven). In connection with the above, the Supreme Court, at the stage of cassation proceedings, was only to decide whether by advertising and marketing the energy drink under the name "Tiger" (specifically: "Tiger Energy Drink") there have been violations of D. Michalczewski's personal rights to his nickname "Tiger".

Supreme Court: the nickname is not protected by law

The Supreme Court dismissed Michalczewski's cassation complaint and ruled that the nickname is not protected as a pseudonym, which replaces the first and last name. A nickname appears next to the first and last name (not instead of them), therefore it is not a personal right. In the light of the above, there is no inseparable connection between the nickname and the person who uses it. By dismissing the cassation complaint, the Supreme Court upheld the judgment of the Court of Appeal, which rejected Michalczewski's claim in its entirety.

In the justification of the judgment, the Court emphasized that there is a difference between a nickname and a pseudonym; they cannot be considered equivalent to each other. In the opinion of the Court, the pseudonym is primarily intended to replace the real name and surname of a specific person, ensuring his anonymity. A nickname in turn defines a person with a known identity. This was also the case with the term “Tiger”, which always appeared in the context of the plaintiff's name, not instead of it.

In practice, the ruling of the Supreme Court means that Dariusz Michalczewski is not exclusively entitled to use (including commercial use) in the public space of the name "Tiger". The word "Tiger" is therefore not solely assigned to D.Michalczewski. Thus, the Court shared FoodCare's argument that the plaintiff has never acquired the rights to the name "Tiger" as a designation to individualize the FoodCare product in the form of an energy drink.

In conclusion, it is worth mentioning that one of the arguments indicated by Michalczewski was the fact that he is the only athlete who "transformed" a sports nickname into a business success. Nevertheless, in the opinion of the Court, the above is not sufficient to determine that a personal right protected by law could have been "created" on this basis. The ruling issued in the present case may have a real impact on other proceedings concerning the violation of personal rights.

Source: https://s3.amazonaws.com/documents.lexology.com/4c2564cf-da05-4776-86ae-1353fa8c3dca.pdf?AWSAccessKeyId=AKIAVYILUYJ754JTDY6T&Expires=1606166618&Signature=RDULSoejj9P7hQRA%2F4YvaBehorE%3D

‘Cannubis’: Merely playing around with the spelling of a word, cannot render it to be distinctive!

 

What would you, as a reader, relate the word ‘Cannubis’ to? Did you think of ‘Cannabis’ too?!

An individual filed a trademark application for the wordmark ‘Cannubis’ bearing Application No. 018048487 at the EUIPO in the following classes for the respective goods:

Class 3 — Toiletries;

Class 5 — Dietary supplements;

Class 30 — Coffee, teas and cocoa and substitutes therefor;

Class 32 — Non-alcoholic beverages.

The Application was ‘Objected’ to by the Examiner stating that the mark applied for was an obvious misspelling of the word ‘Cannabis’ and the targeted consumers will be misled into believing that the products bearing the mark contain some element of ‘Cannabis’. The Examiner concluded that since the mark applied for is directly associated to the natural substance ‘Cannabis’, it is descriptive in nature and is thus not registrable under Article 7(1)(b) of the European Union Trademark Regulation (EUTMR) which refers to the ‘Absolute grounds of Refusal’. (Article 7(1)(b): trademarks which are devoid of any distinctive character.)

The Applicant filed an appeal against the Examiner’s decision with the following arguments:

1. that the phonetic similarities drawn by the Examiner were not tenable;
2. that the word ‘Cannubis’ has no meaning of its own and is thus inherently distinctive;
3. that ‘Cannubis’ is a word which is a combination of the words ‘CANNABIS’ and ‘Anubis’ (the old Egyptian term for skull forming and mummification); and
4. The Applicant also cited prior marks in the Register which could have been considered to be similar to ‘Cannabis’ but were not: Cannabin, Cannabia, Cannabi.

The Appeal Board however, was not convinced with the arguments put forth by the Applicant. It particularly stated that the argument relating to the mark applied for being a combination of the words ‘Cannabis’ and ‘Anubis’ is a far-fetched reference and the public at large in the present times will not establish such a connection. The Appeal was thus refused. 

*Reference from https://euipo.europa.eu/eSearchCLW/#basic/*///number/R2651%2F2019-1.  

"Progression of plant -based nourishment: – A replacement of meat" by Samriti Juneja*

 

https://app.box.com/s/jgjq08a9tzjdueicnc21l3mr2x9w4d5m

* Institute of home economics, Delhi university, New Delhi-110016 - juneja.samriti@gmail.com