Frankies V Woolies update

Just a few hours ago, the ASA made its ruling in the Frankies v Woolies packaging dispute that broke just before Xmas.

Afro-IP follower Tricia Martin drew the report on News24 to Afro Leo's attention which then provoked him to call the ASA who, as usual, were very helpful. Leon Grobler kindly emailed him the decision.

It is important to note that the ASA was only asked to rule on whether the use of the phrase "Goold Old Fashioned" was advertising property and/or imitated by Woolworths and not whether:

• Woolworths copied/exploited the idea to sell soft drinks with “vintage” flavours;

• Woolworths copied the specific flavours sold by the complainant;

• Woolworths copied the complainant’s labels and/or bottle shapes.


In upholding the complaint on "imitation" only (and not ruling on "advertising goodwill exploitation") the ASA ruled that:

"What is clear is that on 15 April 2011, the complainant’s attorneys wrote a letter to the respondent’s supplier indicating that the complainant considers the phrase “Good Old Fashioned Soft Drinks” to be its advertising property. This letter was responded to by the respondent’s attorneys on 12 May 2011. What is important to note from this is that the respondent was aware, at least as early as April/May 2011, that the complainant considered the phrase “Good Old Fashioned Soft Drinks” to be its advertising property. Yet even though its design brief shows that it had a different phrase or phrases in mind for its packaging after this correspondence took place, it ended up using the phrase “Good Old Fashioned” on its packaging. No explanation for this was given.



In light of this, it appears that the only reasonable conclusion to be drawn from the evidence before the Directorate is that the respondent deliberately and intentionally copied the phrase “Good Old Fashioned” from the complainant’s advertising.


Accordingly, the respondent’s use of the phrase “Good Old Fashioned” is an imitation of the complainant’s “Good Old Fashioned Soft Drinks”, and it is therefore in breach of Clause 9 of Section II.


Given the above:


• The packaging in its current format must be withdrawn;
• The process to withdraw the packaging must be actioned with immediate effect on receipt of this ruling;
• The withdrawal of the packaging must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide;
• The packaging may not be used again in its current format in future."

Woolworths have 10 days within which to appeal the decision to the Tribunal level.

Monday's bits

NJQ's newsletter scuttled its way into the inbox this morning with news of two registry decisions in Egypt decided in favour of a Turkish and UK based client of the firm, respectively. You can read more about them here.

Now turning ANC branding upside down

Further south, one of the "most read" articles on popular News24 website may excite proponents of the quality control doctrine as RSA's ruling party the ANC gets shirty over branding issues in the Limpopo province.
 
And, in passing - the California State Bar has around 175000 members of which approximately 8500 form the Intellectual Property and International section. In RSA there are around 300 qualified lawyers interested(ie members of the SAIIPL) in intellectual property of which around 150 are fellows of the SAIIPL.

A to Z of African official IP websites no.33: Mauritius

In this, his thirty-third visit to an African state in his trek around official IP websites, Afro-IP's Kingsley Egbuonu reaches the only country in the whole of Africa that has a name which rhymes with "nutritious", "suspicious", "malicious" and "seditious"-- and also "delicous", which is how it looks in comparison with many of its predecessors in this series. This is what Kingsley says:

"Overview

Mauritius is a Contracting Party to a number of treaties on intellectual property (IP) including the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works.

Copyright Office

• The Ministry of Arts and Culture is the competent office responsible for copyright and related rights in Mauritius. 

• The website for this office is http://www.gov.mu/portal/site/mac

Industrial Property Office

• The Industrial Property Office, Ministry of Foreign Affairs, Regional Integration and International Trade, is the competent office responsible for the administration of intellectual property rights in Mauritius. 

• The website for this office is here.

Social Media Presence

None found

Intellectual Property update in Mauritius

• The United States agreed to provide Mauritius with technical support on intellectual property rights under a Trade and Investment Framework Agreement (TIFA) package concluded this month: see here, here and here.

• The Ministry of Arts and Culture has published the Copyright Bill (2011) on its website.

Conclusion

Apart from social media, the IP offices in Mauritius currently have commendable presence online. Their websites are up to date and helpful for visitors looking to use their services. This can demonstrate that Mauritius values IP as a tool for its social and economic development.

Giventhe inherent challenges, it is widely recognised that an effective knowledge transfer and/or technology licensing policy can leverage developing countries economically (see WIPO references here). In 2007, the Mauritius Research Council (MRC) collaborated with WIPO to explore the benefits and value of IP to its economy especially in the area of technology transfer (here). Again, this shows that it understands the need for a domestic IP strategy based on international best practices but relevant to its peculiar strengths and development needs.

Afro-IP hopes that Mauritius can maintain and improve on this remarkable effort and real commitment to IP".

Kingsley tweets as @IPinAfrica

Appetising address at LES SA AGM

Those with an interest in the progress of South Africa's initiative to commercialise IP from publicly funded institutions are in for a treat at the AGM of the South African Chapter of the Licensing Executives Society (LES SA) next Thursday 2 February.

LES SA has invited the head of  the (National Intellectual Property Management Office) NIPMO, Dr Jonathan Youngleson, to deliver their keynote address at the AGM.

His address is expected to cover issues such as the 'Status of the Implementation of the IPR Act, the Primary Nightmares with the Implementation of the IPR Act as Experienced by NIPMO and/or Others, the IPR Act’s Influence on Contract Research, etc.' according to the invite.

Afro Leo had a chance to catch up with LES SA president Theo Doubell (Bouwers) about the meeting invite which is only addressed to members but Theo says everyone is welcome - just make sure to RSVP here to Kevin Dam (DM Kisch) for catering. Cocktails and drinks follow the AGM and, who knows, you just may join the Society which is all about commercialising IP.

Finer details then:

Thursday February 2
AECI offices - AECI place 22/23, The Woodlands, Woodlands Drive, Woodmead
4pm for the Keynote address

See you there!

A to Z of African official IP websites no.32: Mauritania

This week Afro-IP's A to Z trek through the  official websites of African nations reaches the sandy expanses of Mauritania, where Kingsley Egbuonu has little to cheer us up with.  Kingsley reports:

Overview

Mauritania is a Contracting Party to a number of treaties on intellectual property (IP) including the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works. It is also an OAPI member.

Copyright Office

• The Cultural Cooperation and Intellectual Property Department is the competent office responsible for copyright and related rights in Mauritania. 

• The office has no website.

Industrial Property Office

• The Directorate of Industry (Ministry of Industry and Mines) is the competent office responsible for the administration of intellectual property rights in Mauritania.
• This office has no website.

Social Media Presence

None.

Intellectual Property update in Mauritania

No recent update.

Conclusion

A Mauritanian citizen turned his business idea into a success story, thanks to intellectual property. Yet Mauritania -- like some members of the OAPI-- does not have a web presence for its IP office(s) to enlighten its citizens on the use of IP.

Afro-IP hopes that Mauritania can see IP as a tool to economic and social development.

Kingsley tweets as @IPinAfrica

IP Merger in RSA

Afro Leo normally tries avoid posts about law firms (unless the information is truly scandalous) but makes an exception because the news involves two very long standing IP firms/practises based in South Africa. For more information click here.

Fridaylite

Hypothetically you act for NOKIA and this is KIA's new ad (I have no idea whether it is) - is this legal use of your name, not use of your name, trade mark infringement, unfair advantage, detriment, passing off, or just plain funny (or not) or .. a very very long road? Poll here.

A$A funding crisis and Frankies v Woolies update

Those scales need $ fast

Disturbing news of the possible demise of the Advertising Standards Authority (South Africa) for lack of funding has been circulating for a few weeks now with no immediate respite in sight.

Afro Leo was on the phone to the ASA this morning who confirmed that there was "no change in the situation".

The ASA is the regulatory body that protects consumers from unethical and misleading marketing and referees disputes between competitors. This latter function often involves disputes over packaging, slogans and advertising goodwill which is where it overlaps with intellectual property, especially passing off and unlawful competition.

The ASA has, to a large extent, through its efficiency, relatively cheap cost, transparency (eg an up-to-date website complete with decisions) and engaging manner, shown up our courts by attracting disputes which otherwise might have been heard before them. In doing so, it has fulfilled a vital function for business and the consumer, generally.

An example of a recent dispute handled by them is the Frankies V Woolies look-a-like packaging saga that erupted in the press just before Xmas. News on the development of this case is that Frankies has filed its complaint. It took some time before monies reached the ASA and no doubt the Xmas holidays delayed the matter. In any event the ASA is now awaiting Woolies' reply before taking the matter further. For Afro Leo's grilling by Bruce Whitfield about the dispute (702 and Cape Talk) click here.

A to Z of African official IP websites no.31: Mali

From Malawi to Mali is only a short journey for a blog editor, since you can get there just by deleting the "aw".  For Africa's online globetrotter Kingsley Egbuonu, the trip from the 30th to the 31st country on his schedule is rather more of a culture leap, from ARIPO to OAPI.  So what did Kingsley find in Mali? Read on:

Overview

Mali is a Contracting Party to a number of treaties on intellectual property, including the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works. Mali is also an OAPI member.

Copyright Office

• The Malian Copyright Office is the competent office responsible for copyright and related rights in Mali.

• The website for this office is www.bumda.cefib.com and it is in French.

Industrial Property Office

• The Centre for the Promotion of Industrial Property in Mali (Ministry of Economy, Industry and Trade) is the competent office responsible for the administration of intellectual property rights in Mali.

• This office has no website.

Social Media Presence

None.

Intellectual Property update in Mali

No recent update.

Conclusion

Unlike some of OAPI members seen so far, Mali at least has a website for its copyright office. It is our hope that Mali can build on this towards a better presence for its offices.

Kingsley tweets as @IPinAfrica

First the strike, then the backlog: grim news from Nigeria

Afro-IP thanks Bolanle Olowu (Partner, IPI Watch Services, Lagos) for the following information concerning the national strike in Nigeria and its effect on trade mark, patent and design filings:

"The Nigeria Labor Congress, Trade Union Congress and Coalition of Civil societies embarked on a nationwide strike to protest the recent increase in the price of premium motor spirit (petrol) in Nigeria on 9 January, 2012. As a result of the nationwide strike, 98% of offices were shut down including Government offices, as well as the Trademarks, Patent and Design registry. 

This action automatically translates to huge loss of commercial revenue generated daily from Trade Marks, Patent and Design filings, renewals and all other antecedent processes that emanate from intellectual property transactions. It is been widely reported that the resultant effect of the strike on the country’s economy is a loss of about 617 Million dollars per day since the strike started.

In relating this to the income generated by the registry daily, it may not be possible to give you precise figures, but it is on record that we have increased filings of intellectual property rights yearly with an estimated filing of about 98,000 or more applications filed last year. 

This current impasse brings to mind amongst others the question of how the registry will deal with the issue of convention applications claiming priority which falls between the days of the strike. That is a decision for the Registrar to make upon resumption as the Nigerian Trade Marks, Patent and Design Acts do not make provisions for such circumstances. 

In all of this, one thing that is clear is that the registry will be inundated with new applications and matters to deal with in addition to the existing backlog.

Trade mark agents and registry officials will certainly not be looking forward to dealing with the excess work upon resumption".

Bolanle promises to keep us updated on further developments.

Anti-Counterfeit Friday

Stun Grenade downtown Joburg (Pic Adrian De Kock)

From one of South Africa's leading newspapers - the Star is a front page story about one of IP's greatest challenges:

"Parts of Joburg [ed Africa's commercial capital] resembled a war zone yesterday as the SA National Defence Force, the SAPS Tactical Response Team and customs officials took part in Operation Festive Season for a second day."

"Two army Rooikat trucks stood at both ends of Delvers Street as officers focused their efforts on counterfeit clothing, and shopowners looked on helplessly as their stores were raided and their goods confiscated."

The tone and content of report is highly critical:

"A taxi driver was dragged into a puddle and ordered to swim because he laughed at a police officer. A woman was pepper-sprayed and beaten with a stick because she wanted to close her shop. And a human rights worker had his phone confiscated and was arrested for taking photographs of a soldier beating a shopkeeper with the butt of his R4 assault rifle."

Comment:

At the risk of repetition, it is almost a year to the day that a Custom offical was murdered for being too effective at his job. The statistics on counterfeiting are at appalling levels - taxes do not get paid, jobs and revenue are lost, counterfeit spare parts and drugs are deadly and counterfeiting has been linked to organised crime and perhaps even terrorism. The effects of counterfeiting cannot be underestimated and whilst Afro-IP does not condone brutality or abuse of powers in any way, it supports all efforts against counterfeiting. One must question whether, but for the alleged abuses mentioned in the report, the news would have made the front page or the newspaper at all. Probably not. And what does that say about the mindset of the public against dealers in counterfeit goods, when such news does not (on its own) sell papers?

Africa and the INTA: no excuses allowed

2012: time to put Africa
on the map at INTA

This year's International Trademark Association (INTA) takes place in Washington DC from 5 to 9 May. After last year's furore over the disappearance of Africa from the programme, Afro Leo is delighted to announce that it has been restored for 2012: an African Regional Session will be held on Wednesday 9 May, from 10.15am to 11.30am.

Now for a growl from Afro Leo.

It's no good saying that there ought to be an Africa Session, complaining when it's dropped -- and then not bothering to turn up for it.  There are plenty of other opportunities to do your shopping (and don't pretend that you're not disappearing off to the shops ...) -- and if you aren't clubbing and overdoing it on Tuesday night you shouldn't have any problem getting up in time for a 10.15am meeting.

Don't say either that there's no point in going because you only meet other Africans there and you know them already. Apart from the fact that it's simply not true -- I spotted a couple of big corporate non-Africans at the session two years ago, one of whom even asked a question -- you can make sure that the event is better attended by people from outside the Continent by dragging them along. If each African attending INTA were to bring in one non-African, imagine how impressive the session would be.

This is a big year for Africa.  The May session is the first since the Arab Spring and the first since the founding of South Sudan. It coincides with a time when the once-prosperous markets of North America and Europe are looking shabbily recessional, and where entrepreneurs are seeking new opportunities. An article in The Economist recently pointed to the increasing growth potential which has sprung from the emergence in much of Africa of a large, educated and relatively affluent middle class with matching aspirations. But there's not much hope of persuading people of this if all they see at INTA is a largely empty room with a sign saying "Africa" hanging on the door.

First January Post

This Afro Leo's First January Post (delayed due to a xmas break) is, as usual, Janus-like in its glance over some of the major issues in 2011 and forthcoming projects in 2012.

Some highlights in 2011 include :

• Really a lowlight but a very significant incident was the murder of customs official Johan Nortje which provoked well over 300 concerned readers to vote on the Afro-IP poll for an urgent investigation and which lead to World Trade Mark Review's grilling of Ronald Noble and Kunio Mikuriya of Interpol and WCO, respectively, about the incident - highlighting the stakes in the counterfeiting business in Africa.
• INTA's response(s) to the omission of the Africa focus for the 2012 INTA meeting following an outcry from readers, are greatly appreciated - Africa remains firmly on INTA's IP agenda.
• Jeremy's Monday posts from roving cyber reporter Kingsley Ebgonou whose efforts in highlighting the the online presence (sadly, mostly absence) of African IP Registries have started to elicit change and a great deal of interest. His most recent excursion to Malawi must have felt like fishing for shark at their stunning Monkey Bay.
• South Africa's TKgate (click here) exposed by Professor Dean in his new post as the Anton Mostert Chair of Intellectual Property at Stellenbosch University. If the name of the post is mouthful its vision to be "the custodian of South African IP law" is certainly not.
• The retirement of probably the most active and well respected IP Judge in South Africa, if not the continent - Louis Harms. His departure leaves a worrying gap on the South Africa bench. If only the South African public paid as much attention to its judicial bench as it did to Bismark Du Plessis' worrying presence on bench at last year's Rugby World Cup.
• The IP interest in Africa's 55th country - South Sudan - which has given rise to a great number of online hits as did the Libya update by Spoor and Fisher on the Afro-IP Linkedin group.
• The rise of new African IP blogs such as IPKenya and social media tweeters with an African bite such as @IPinAfrica and @cr8veDesignLaw (Adams & Adams) to name a few, apart from @afroip of course.
• ARIPO's newsletter content that is excellent in depth and breadth - long may it last.
• Nigeria embracing the role of IP in nation building and the role of overseas base institutions such as WIPO, CLDP and PIPRA in promoting African IP together with the constant and appreciated support of the IPKAT weblog.
• The launch of the Anti-Counterfeit Friday posts to promote the extent of the problem on the continent.
• Recognition of Afro-IP by:
• the SAIIPL president Tshepo Shabangu for its role in promoting African IP.
• LexisNexis as one of the top 25 international law blogs (see alongside)

Although Afro-IP is extremely appreciative of the support from its readers, contributors as well as acknowledgements and notes 2011 highlights above there is still a considerable amount to do. Africa is a continent with around 1 billion people and 55 odd countries full of innovation, yet its worldwide contribution to IP is estimated to be under 1%. Whilst the first WIPO report on the state of worldwide IP recognises advancements on the continent, the numbers come from such a low base that one cannot but help feel that progress remains slow. Afro-IP appreciates that there are considerable constraints to IP growth and recognition such as poverty, education and war but sends this rallying call to those in the know to take some (extra) time out (and continue) to contribute, and make a difference by sending contributions here or by commenting on the blog.

Best wishes for 2012!!

Calling all African IP practitioners in London

"Lyons": not quite what Afro Leo
has in mind, but he's sure that
a suitable venue can be found

I get the impression that there are quite a lot of African intellectual property practitioners in London and its catchment area and it struck me that it might be fun to organise a late afternoon or early evening meeting under the auspices of the Afro-IP weblog that would (i) facilitate a little networking and (ii) possibly have some solid IP content to it if we could find a speaker on a subject of genuine pan-African interest to the IP fraternity.

At present, I've no venue and no idea concerning dates, but I'd like to find out how many readers of this blog might like to attend. If the response is good, I'll organise something. So if you'd like to attend, email me here with the subject line "Afro-IP London". Don't expect an immediate reply, but I'll get back to you in time.  And if you can offer a venue or hospitality, let me know!

Mozambique to discuss PCT annuity payment dates

You'd be surprised where discussion of African IP topics occurs. From its name, the ECTA Group on LinkedIn sounds fairly Eurocentric: is ECTA not a leading body of trade mark practitioners, so what concern might it have with matters of an African nature? Well, this blogger, a member of the ECTA LinkedIn Group, happened to spot the following from Mozambique-based IP practitioner Wanda Honwana:

"PCT - MOZAMBIQUE: In Mozambique, when we file the national phase of a PCT [Patent Cooperation Treaty] application it is necessary to pay the 1st and the 2nd annuities. So, is the term of protection calculated from first priority date or application filing date? Which is the date for calculating subsequent annuities? We have started a discussion with the PTMO [Patent and Trade Mark Office] regarding this matter which can result in a alteration of the PCT procedures in Mozambique".

If you are involved in PCT applications involving Mozambique and fancy a discussion, now you know whom to contact!

A to Z of African official IP websites no.30: Malawi

Back on terra firma again after his trip across the water to Madagascar, Afro-IP's e-emissary Kingsley Egbuonu finds himself in Malawi, the 30th country he has visited in his search (often fruitless!) for official intellectual property office websites.  This is what he found there:

Overview

Malawi is a Contracting Party to a number of treaties on intellectual property (IP) including the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works. It is also a member state of ARIPO.

Copyright Office

• The Copyright Society of Malawi (Ministry of Youth, Sports and Culture) is the competent office responsible for copyright and related rights in Malawi. 

• The website for this office is www.cosoma.org but it is not functional.

Industrial Property Office

• The Department of the Registrar General (Ministry of Justice and Constitutional Affairs) is the competent office responsible for the administration of intellectual property rights in Malawi. 

• This office has no website.

Social Media Presence

None.

Intellectual Property update in Malawi

No recent update.

Conclusion

Like some members in ARIPO, Malawi’s IP offices do not have an online presence. However, Afro IP hopes that Malawi can make effective use of its links [for example, the Scottish Law Commission at http://www.scotlawcom.gov.uk/news/malawi-link/] to advance IP as a tool for development.

Kingsley tweets at @IPinAfrica

A to Z of African official IP websites no.29: Madagascar

Ever-restless as he roams the vast continent of Africa in search of official intellectual property websites, Afro-IP's e-emissary Kingsley Egbuonu indulges in a little off-shoring this week as he travels across the water to Madagascar on the 29th stop in his A to Z tour. This is what he found there:

Overview

Madagascar is a Contracting Party to a number of treaties on intellectual property (IP) including the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works.

Copyright Office

• The Malagasy Copyright Office (Ministry of Information, Culture and Communication) is the competent office responsible for copyright and related rights in Madagascar.

• The website for this office is the Ministry’s www.omda.mg and it is in French.

Industrial Property Office

• The Malagasy Industrial Property Office (Ministry of Economy, Trade and Industry) is the competent office responsible for the administration of intellectual property rights in Madagascar.

• The website for this office is www.omapi.mg and it is also in French.

Social Media Presence

None

Intellectual Property Update in Madagascar

No recent update found.

Conclusion

Madagascar seems to have effectively utilised the opportunities and assistance on offer -- especially from the World Intellectual Property Organization (WIPO) -- to advance IP as a tool to its development. One of the ways in which it can demonstrate this is through its useful and updated website. 

This is a wake-up call -- if not a challenge – for the larger and wealthier countries in the continent.

Kingsley tweets as @IPinAfrica

A to Z of African official IP websites no.28: Libya

Kingsley Egbuonu's 28th visit to an African jurisdiction takes him to Libya, where the highly-publicised civil war and change of government has inevitably resulted in the country facing higher priorities than getting its intellectual property offices online. This is what he says:

Overview

Libya is a Contracting Party to a number of treaties on intellectual property including: the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works.

Copyright Office

• The Intellectual Property Division (National Bureau for Research and Development) is the competent office responsible for copyright and related rights in Libya. 

• Currently, this office has no web presence.

Industrial Property Office

• The Intellectual Property Division (National Bureau for Research and Development) is the competent office responsible for the administration of intellectual property rights in Libya. 

• Currently, this office has no web presence.

Social Media Presence

None

Intellectual Property Update in Libya

The industrial property offices in Libya were not damaged during the recent civil war, but they are all expected to be fully functional soon (http://bit.ly/tuTGAt).

Until a government is elected and a new constitution adopted, the Constitutional Declaration currently issued by the Transitional National Council ensures intellectual property rights. Article 8 of the Declaration states that: “… The State shall also guarantee the right of work, education, medical care, and social security, the right of intellectual and private property …”

Comment

Afro-IP wishes the new government of Libya the best of luck in bringing the country together. Hopefully, it will do better on IP than its predecessor.

Kingsley tweets as @IPinAfrica

Frankie's v Woolies: Good old fashioned media

pic: facebook

Frankie's story

Goes like this: Frankie's and Woolies meet to discuss a distribution arrangement for their successful Frankie's range of products. After being "declined" by Woolies, Frankie's notice the launch of Woolies' own range of beverages sharing similarities in the retro packaging, range of flavours, descriptions and tag lines. They launch an immediate media attack and an ASA complaint against Woolies. Click here and here for more background information and thanks to Jeremy Speres for the link.


Unlawful - does it matter?

As interesting as the legal aspects are (and they are - you can indulge in the poll alongside if you like) the greater force at play here must be the media. For that reason and for the time being, we'll let the adjudicators and the lawyers (and you, if you wish) settle out the finer aspects of whether this is passing off, unlawful competition, misuse of advertising goodwill and/or breach of confidence by Woolies or defamation by Frankie's (you will note that the youtube video has been removed from the Timeslive site). This post will concentrate on reputation management, media and their place in IP disputes.

Frankie's did not need to go to Hollywood, they simply went to the press. And, in just a few days, social media has done the rest in creating what is no doubt a big headache for Woolies. Consumers appear to be up in arms regardless of whether Woolies are legally in the clear, and there are greater risks if they are found to be in breach of the law. Woolies, though, have handled this type of situation effectively in the past (see here for example) but this seems a steeper challenge to overcome and turn to its advantage?

Zuckerberg has heard this before

There is an irony and lesson that Facebook, itself the subject of a idea theft dispute, has been used as a platform to garner a petition and aire public views (see link above) as it illustrates just how common these types of allegations (theft of an idea shared with a possible business partner) are and also the viral effect of social media . Whether by design, intuition or luck, Frankie's reaction has enabled them to very quickly exploit several advantages open to a popular home grown niche brand and in doing so they have won further publicity (eg #frankies was apparently trending on Twitter). Before social media existed this would not have been possible or, at least not possible at the lightning speed at which it has occurred.

The relationship between media and IP is also illustrated in ambush marketing disputes where an arrest (which, by nature, attracts media attention) has been made, bringing into question the effectiveness of an arrest to curb ambush marketing (which feeds off media attention). It can have quite the opposite result.

It is palpably clear that anyone involved in IP litigation is required, now more than ever before, to be aware of the media (and in particular, social media) as an influencer in the resolution of a dispute. The Coca-Cola Company's handling of an "infringing fan site" is an example of such sensitivity and anyone who has had their cease and desist letter posted on a site for ridicule will also know only too well. Even, a run-of-the-mill trade mark opposition may require PR input before, during and after the decision as Virgin Enterprises found out.


Here's a thought

Social media is also not just open to the small guy. A colleague, Craig Shapiro, recently mooted the idea of using it as a tool to positively influence known infringers - what are the possiblities of a brand using its followers to help others respect their trade mark rights by spurring support and ostracising an infringer. Clearly cheaper than litigating, educational and properly done could deepen brand loyalty.