The attention of CyberPanda has been caught by the recent lawsuit filed by Interflora against Marks & Spencer and Flowers Direct Online. Interflora has filed the lawsuit against the two defendants on the ground on trademark infringement. The two defendants have purchased certain keywords from Google AdWords including 'interflora' which means that each time a user searches for the term 'interflora', it is directed to the sponsored links to the website of Marks and Spencer and Flowers Direct.
The lawsuit is reminiscent of the recent case of Wilson v. Yahoo! UK Ltd & Anor [2008] EWHC 361 (Ch) which was dimissed by the High Court earlier this year on the grounds that pruchase of the keywords 'Mr Spicy' by Yahoo! did not infringe the rights of the owner of the trademark 'Mr Spicy.' This case was covered in detail by CyberPanda in an earlier publication.
It will be interesting to see whether the Courts will adopt a similar line taken by the High Court in Wilson v. Yahoo or whether this present case will be distinguished from Wilson. The present case has the potential of being a landmark hearing if it is distinguished from Wilson on either a factual or doctrinal ground.
Showing posts with label trademark infringement. Show all posts
Showing posts with label trademark infringement. Show all posts
5 December 2008
25 July 2008
Absolutely Fabulous Scrabulous? Or Absolutely Fabulous Infringing Game?
Today, BBC News has reported that Hasbro, the right owner of Scrabble in the USA, is suing the creators of Scrabulous, which is available on Facebook, on the grounds that Scrabulous infringes its copyright and trademark.Before filing the lawsuit, Hasbro requested Facebook to take down the application back in January 2008, but the latter refused to do so. The fact that Scrabulous in one of the most popular applications on Facebook and attracts over 595,000 active users daily might have had something to do with this decision.
At this stage, Facebook has not been joined to the lawsuit but it might be at a later stage. In addition, the rights to Scrabble outside the US are owned by Mattel which is not involved in this current lawsuit.
It will be interesting to see how this case evolves and how the proliferation of similar applications (e.g. Starbucks, Swarovski & Louis Vuitton applications on Facebook) can be successfully regulated and monitored.
A sensible option in some cases, might be for the rights owners and the creators to negotiate an agreement with which both parties are equally comfortable rather than the imposition of a downright prohibition on use which might not be in the interest of creativity. A fine balance has to be maintained between the protection of the rights of owners and the opportunity for creativity by developers.
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15 July 2008
It looks like the luck of Ebay might just be changing!!
The long awaited ruling in the landmark trademark trial of Tiffany (NJ) Inc. and Tiffany and Company v. eBay Inc is here at last!
Yesterday the District Judge Sullivan of the US District Court, Southern District of New York, delivered the ruling in favour of eBay which will, no doubt, breathe a sigh of relief after the scathing rulings of the French Courts earlier in July in actions brought by LVMH and Hermes against eBay.
The first allegation by Tiffany was that eBay "actively advertised the availability of Tiffany merchandise" on its website and using sponsored links on Google and Yahoo!. The judge ruled that the only way a "Tiffany" product could be described by sellers was to use the brand "Tiffany."
The second argument of Tiffany was that eBay should be held liable for the sale of counterfeit Tiffany products on its website. Taking into account the fact that eBay acted promptly once it was notified of infrigements by Tiffany, the judge reject the theory of "infringement in the air" advanced by Tiffany.
In short, this judgment from the US clarifies that it is the job of the trademark owner to police its mark rather than the job of the platform.
This judgement will no doubt be welcomed by all the intermediaries and, in particular, eBay whose business models were very much threatened by the recent rulings in the French jurisdiction.
Yesterday the District Judge Sullivan of the US District Court, Southern District of New York, delivered the ruling in favour of eBay which will, no doubt, breathe a sigh of relief after the scathing rulings of the French Courts earlier in July in actions brought by LVMH and Hermes against eBay.
The first allegation by Tiffany was that eBay "actively advertised the availability of Tiffany merchandise" on its website and using sponsored links on Google and Yahoo!. The judge ruled that the only way a "Tiffany" product could be described by sellers was to use the brand "Tiffany."
The second argument of Tiffany was that eBay should be held liable for the sale of counterfeit Tiffany products on its website. Taking into account the fact that eBay acted promptly once it was notified of infrigements by Tiffany, the judge reject the theory of "infringement in the air" advanced by Tiffany.
In short, this judgment from the US clarifies that it is the job of the trademark owner to police its mark rather than the job of the platform.
This judgement will no doubt be welcomed by all the intermediaries and, in particular, eBay whose business models were very much threatened by the recent rulings in the French jurisdiction.
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