Showing posts with label World Cup 2010. Show all posts
Showing posts with label World Cup 2010. Show all posts

Wednesday, 21 November 2012

Darren Olivier

The relevance of International IP developments

I was recently invited to present at a seminar for firm clients on international IP developments in 2012 that are useful to everyday business. This is in turn forced me to consider why would it be useful, for example, to discuss or even mention the Apple V Samsung global IP battle or the Laboutin appeal decision or the latest decisions on the Harmonisation Directive?

South Africans are self sufficient people who improvise by nature and most work in conditions where international practise in the developed world is not always practical or affordable and sometimes, not useful. We are the entrepreneurs of the global economy with a natural aversion to being told what to do or how to do it. All of this can lead to frustration as this amusing letter from US based IP lawyer in 1970 so clearly demonstrates: 

The lawyer accuses the Registrar of Trade Marks at the time as having "not yet climbed out of the slime in which he was spawned..". As I said - it is a delightful read.

As a result, an International Update can easily become patronising or irrelevant unless it truly is useful or interesting  or made relevant for local business people.  

From an IP perspective, we are sometimes obliged to focus on international developments. This is because we have obligations under various agreements and they include TRIPS and Berne that impose minimum standards for our IP laws in return for other benefits, like favourable conditions for international trade and mutual respect for IP.

There are occasions where we are gently (and sometimes, not so gently) persuaded to follow international developments. This was highlighted by the US reaction to the first decision of the High Court (then Supreme Court) when Mcdonalds lost a trade mark battle against a local. South Africa was inserted on the 301 Report for not respecting international IP (see 1995 comments here). Another example is 2010 World Cup where we were persuaded to adopt very strong and new IP laws in favour of sponsors, in return for hosting the tournament.
There are also occasions where we just ought to follow international precedent. We generally recognise the benefit of using and adopting wording and judgements elsewhere, especially in Europe from which most of our IP legislation is taken. The SCA decision is Cowbell, for example, states:

"Albeit in the context of the interpretation of a European Community Council Directive, the European Court of Justice in Sabel (at 223 - 224) made some observations that are pertinent to the present issue:..."

On the other hand, we don’t have to follow anyone. We are a national state with our own laws. There are also times we are gently (and sometimes, not so gently) persuaded against following an international agenda or norms. This was recently highlighted by the refusal to host the Africa IP forum which was due to take place in Cape Town earlier this year due to pressure groups that protested that the agenda lacked sufficient “development focus”.

And finally, there are times when we simply ought not to follow international developments and the best way to illustrate this is by borrowing the message and, ironically, the IP associated with HSBC’s marketing campaign alongside.

However, we also occasionally lead. This year alone two decisions, namely Zonquasdrift (the similarity of "wine" and "grapes" for trade mark infringement purposes currently on appeal) and Zemax (the nature of the consumer when considering pharma drug names) are likely to be cited internationally because they deal with novel concepts (Zonquasdrift) or provide SCA judgements (Zemax) on existing issues that are not settled elsewhere.
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Tuesday, 13 July 2010

Darren Olivier

In the jungle..

Given the recent lack of activity on this blog one might be mistaken for believing that Leos hibernate during southern African winters. The truth is that they don't (see here) although they are known to become restful after periods of intense activity. This Leo's excuse is partly due to the WC 2010 vuvuzela vibe that swept through South Africa leaving normal life in its wake, and partly because this post lead to a busy instruction involving the so-called "Bavaria Babes". Who said trade mark law was not fun? This short note is to let you know that life is back to relative normality and more regular postings will commence shortly.

For those interested in the whereabouts of Henry (see here), I am happy to say that his worrisome mum wrote in to say that he returned home safely yesterday. She said that she was grateful for the efforts of the SS in keeping him safe during his WC trip. Henry later clarified that SS was tweetspeak for Soccer Sity...
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Wednesday, 7 July 2010

Jeremy

Slipping through the net: SA loses to fakers

How well has the South African economy done in light of the past month's football frenzy? Not as well as it might, according to "Counterfeit World Cup goods dent South African economy", published on CPA Global's New Legal Review (here). Citing a report from the INTA, the article reports that the influx of fake-branded clothing into South Africa has distracted consumers from purchasing indigenous goods, since counterfeits have provided them with a cheaper means of keeping up with fans wearing licensed products.

Figures from the South African Clothing and Textile Workers Union suggest that 14,400 jobs have been lost in the country’s textile sector over the past year as a result of World Cup fakes. On a more positive note, in the past six months South African customs authorities have impounded fake World Cup goods worth R66m, (US$8m) -- though there are of course no figures for the fakes that slip through the net.
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Wednesday, 16 June 2010

Darren Olivier

The (arrest? of the) Beautiful (at the) Game

The latest ambush marketing news to come out of the football World Cup (and no this blog does not only cover the World Cup) is that a group of female fans wearing skimpy, tight fitting orange dresses were allegedly detained/removed/arrested (depending on which report you read) during Monday's game between Holland and Denmark for allegedly being involved in ambush marketing activities for Dutch brewery Bavaria.

There is no shortage of reading material here - see for eg - Google's "Fifa detains blondes". Bavaria of course have a history of taking Fifa on (a similar, not-quite-so-sexy incident involving leiderhosen occurred in 2006). This time though the "offending orange outfits" apparently did not bear telltale logos and it is not clear to what extent Bavaria were involved other than by giving the outfits away. The incident also took place during a game when partisan Dutch would also have been clad in bright orange. To avoid being naive though you may wish to consider Bavaria's advert "Check De DutchDress Commercial" before taking a view on whether this was innocent co-incidence or a very well conceived and, aided by Fifa, effective marketing ploy.

Perhaps the most compelling piece from a marketing perspective is contained under the headline "Sorry Budweiser, Fifa just sold a boatload of beer for your competitor".

The question of whether Fifa acted lawfully is dependant on a number of factors such as - was the detention/arrest/questioning/removal (depending on which it was) of the women within the powers of the "Fifa police"? If so, did they follow due process which includes having regard to the womens' right to dignity, freedom and privacy? Were the activities of the women "ambush marketing" within the very broad definitions of the by-laws and/or Acts eg S15 Merchandise Marks Act? Were the activities of the Bavaria Brewery ambush marketing - did they simply give away the dresses or did they do more eg fund and plan the trip to RSA - or was this a group of supporters who simply got together and decided to dress up for the fun of it or to mimic the girls on the Bavaria advert (must have been pretty cold if it was)? Could the ambush marketing legislation withstand an attack on constitutional grounds?

Lawful or not, apart from the press, is anyone going to take Fifa on? Will Fifa take this further - unlikely? Fifa are apparently going to file criminal complaints.

And...will Robbie Earle get his job back?

Oh ... and Holland won 2-0 ....just in case anyone is interested.
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Friday, 11 June 2010

Darren Olivier

Henry's postcard

[Back of Postcard]

Dear Mum,

Finally, I have landed in South Africa. There were no problems with the ash cloud. I know how worried you were. I also haven't been mugged - read that article in the Telegraph if it helps - but I think I have been ambushed. It happened during this Spur advert and I have been eating their R69.95 deal (+-6 quid) ever since. I hadn't realised anyone but the sponsors were allowed to advertise during 2010. Anyway, everything is very cheap here. I bought myself an England hat that cost me 2 quid (back home it cost 20!) and I have got two Bafana Bafana souvenier shirts for Charley and Sue (saved 150 quid!). Someone told me they were fake but I don't believe them. Anway you try tell the fake from the real on the front of this postcard! And I mean the expensive ones are sold out. As expected I did catch flagitis - but managed to cure it by making a cross on my body using suntan cream. The red on white works quite nicely. Gotta go - downloaded the Vuvuzela ringtone and it's trumpeting..

Love you mum. Will write soon and please stop worrying.

Henry

[Front of postcard - Spot the Counterfeit]


Photographer John Livingstone, Street Parade outside Afro Leo's Office
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Wednesday, 9 June 2010

Darren Olivier

Counterfeit contagion and the Gordian knot

These articles (here, here and here) portray the extent of counterfeit crisis ahead of the World Cup in South Africa. Yet is it a problem that ought to have been anticipated and could anything have been done about it by Fifa, the government or the event's official sponsors?

The articles linked to above may provoke empathy for the locals enjoying the fruits of the counterfeit industry or sympathy for the "innocent" entrepreneur who has spotted an opportunity. After all counterfeiting creates employment and a counterfeit shirt - how harmful can that be?

The problem is that the behaviour perpetuates a mindset that copying is okay, that big brand owners can afford to be ripped off and perhaps even ought to be - how can they charge so much for a shirt ($80) that I can produce (or get produced) at a fraction of the price ($5) ? Once this thinking becomes popular the fight against counterfeits becomes significantly more difficult.

A counterfeit shirt is one thing, a counterfeit spare part that endangers lives, counterfeit software that fails to prevent a car hijacking and counterfeit drugs that fail to contain the spread of disease are quite another. And let's not downplay the counterfeit shirt. We have seen it used to transport illegal drugs under its neck labels and exploit child labour in its production.

This all threatens to become another strand in what has been dubbed Fifa's Gordion Knot and in turn a headache for government.

So, what could have been done? Is it possible to have sold official shirts for $5-$10 so that the counterfeit market is/was eliminated, for example? Could Fifa or the RSA authorities have insisted on it?

Could the brand owner have still benefited - eg if you combine a cut price strategy with an effective communication campaign official could brand owners win customers in higher earning countries (where they can sell their shirts for more) and in Africa would they win market share? Evidence suggest that strategies like these work. Coke, for example, is probably the best known brand in Africa because they made their product and brand available in even the poorest (financially) of African countries many years ago and one of the ways in which Microsoft is combating its Kenyan software piracy problem is by selling their product at a significantly reduced price.

Or is it a problem with anti-counterfeiting laws and enforcement or that brand owners simply cannot compete with counterfeits often produced in the East?

Your views would be most welcome? This Afro Leo has to go for now - it is not even 6am and a Vuvuzela is pounding outside. The rooster has cried.

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