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www.bataraimmigrationlaw.com Riverside and San Diego Immigration Attorney Carlos Batara provides a short overview of the immigration court and deportation defense process. Based on his immigration tri (more) |
The supreme court of Canada in the recent case of Mattel Inc. V. 3894207 Canada Inc. has clarified the law concerning the issue of confusion as applied to famous trademarks. The case involved a numbered company which operated a chain of restaurants in the Montreal area under the trademark BARBIE’S. The numbered company filed a trademark application in order to protect its trademark. The application was approved by the trademarks office, but later opposed by Mattel Inc. on the basis that the mark was allegedly confusing with Mattel’s registered trademark BARBIE. The opponent, Mattel, brought forward survey evidence which demonstrated that, in the mind of the people surveyed, that there might possibly be a link between the applicant’s restaurant and the opponents trademark. Despite Mattel’s evidence, the opposition board rejected Mattel’s position. Mattel appealed to the Federal Court. The Opposition board’s decision was confirmed by the Federal Court and then again by the Federal Court of Appeal. Mattel appealed yet again to the Supreme Court of Canada.
The Supreme court dealt with two principal issues, namely the nature of confusion and the nature of the evidence used to find confusion. On the issue of confusion, the court accepted Mattel’s contention that the BARBIE trademark was famous. Indeed, the justices agreed with Mattel’s contention that the BARBIE trademark had reached the status of a cultural icon. Nevertheless, in the court’s opinion, the mark was famous only with respect to dolls and not with respect to restaurant services. While the court concluded that resemblance of the wares/services is not a requirement for a finding of confusion, a significant difference in the nature of wares/services used in association with two trademarks was an important consideration in determining confusion. Simply because the BARBIE trademark was famous with respect to dolls, that fame, in itself, did not render the mark famous in other areas such as restaurant services. In effect, the court held that since the “doll” business and the restaurant business appealed to different tastes and largely different clienteles, there was no likelihood of confusion between the two trademarks.
As to the issue of the survey evidence introduced by Mattel, the court dismissed it as irrelevant. The court noted that the test is one of likelihood of confusion, i.e. that there must be a finding that the two marks are likely to be confused. The court noted that the survey asked the question “Do you believe that the company that makes BARBIE dolls might have anything to do with this sign or logo”. The survey asked a question addressing the issue of possible confusion, not likely confusion. The court seemed to leave open the door for the possible relevance of this type of survey evidence, provided of course the wording of the question resulted in a clear test of likelihood of confusion. Of course, evidence of actual confusion would have been highly relevant; however, no such evidence was submitted.
While this case does seem to limit the scope of protection afforded to famous trademarks, the case did leave the door open to marks whose fame was such that confusion could be found even if the competing mark was used for very different wares/services. Indeed, the court sited the example of the VIRGIN trademark, which has been used with a diverse nature of wares and services including soft drinks, music, games, resorts, cellular phones, clothing, books, cosmetics, credit cards and even air lines. The fame of the VIRGIN trademark may be of such breadth that using a similar mark for an unrelated service or product may result in a likelihood of confusion. In essence, since the VIRGIN trademark is famous in such a variety of different areas, it is possible that the average consumer might be confused if confronted with a similar trademark in a line of business not presently occupied by Richard Branson’s group of companies.
There is no requirement for the material to have any aesthetic or material value to be protected nor to be registered as copyright.
The general rule is that if someone has created it, then they or, the person to whom they have transferred the rights, own the copyright. ‘It’ includes: original artistic works including paintings, photographs, literary, dramatic and musical material, sound and video recordings, including broadcasts live or otherwise, and applies to any medium, including publishing on the internet and in email marketing.
On a practical note, if an article, picture or such has already been published then the copyright owner is often very amenable to having it seen in print again as long as there is suitable acknowledgement of source as this can provide a bit of free advertising. Even if a fee is required, it is often set quite low.
When an article is published in a magazine for instance, it is only ‘first serial rights’, briefly the right to publish it the first time, that are transferred. The copyright for further publication normally remains with the author.
You might think a photocopy of a particularly complimentary magazine article in an email or on your website might well generate reassurance amongst potential customers. But this can be quite difficult as the norm is that multiple agents have various rights to it and you might be daunted by the task of obtaining it all.
For instance, there is the person who wrote the words for the article, then those who took the pictures, frequently sourced from more than one person, the graphic artist who created the layout for the specific article and the person who owns the general page layout rights. Further, the copy might well contain items, such as tables, databases, lyrics and quotes which are sourced from other holders of copyright. And similar rights extend to any graphic advert that might be on the page as these would have copyright owners of the design and content.
But it is not all restrictions, although there are fewer exemptions than one might expect in the 45 paragraphs and 18 sub paragraphs in the relevant chapter of The Act. These include educational use and adapting copyright material for the visually impaired. When offering for sale works of art it is normally permissible to reproduce the item.
The general principle that ideas cannot be subject to copyright, only the form in which they are expressed, was challenged by some of the joint authors of The Holy Blood and the Holy Grail, when they alleged that Dan Brown, in his book The Da Vinci Code, had copied their ‘central theme’. However, on appeal it was found for Brown.
Copyright is time limited but these limits vary.
Material on the web is similarly protected, although cognisance is taken of the technical reproduction requirements of the technology. For websites and other transmitted material such as email marketing it is advised that the (c) sign be put on every page with the year of creation and the copyright holder identified.
There is no requirement for the material to have any aesthetic or material value to be protected nor to be registered as copyright.
The general rule is that if someone has created it, then they or, the person to whom they have transferred the rights, own the copyright. ‘It’ includes: original artistic works including paintings, photographs, literary, dramatic and musical material, sound and video recordings, including broadcasts live or otherwise, and applies to any medium, including publishing on the internet and in email marketing.
On a practical note, if an article, picture or such has already been published then the copyright owner is often very amenable to having it seen in print again as long as there is suitable acknowledgement of source as this can provide a bit of free advertising. Even if a fee is required, it is often set quite low.
When an article is published in a magazine for instance, it is only ‘first serial rights’, briefly the right to publish it the first time, that are transferred. The copyright for further publication normally remains with the author.
You might think a photocopy of a particularly complimentary magazine article in an email or on your website might well generate reassurance amongst potential customers. But this can be quite difficult as the norm is that multiple agents have various rights to it and you might be daunted by the task of obtaining it all.
For instance, there is the person who wrote the words for the article, then those who took the pictures, frequently sourced from more than one person, the graphic artist who created the layout for the specific article and the person who owns the general page layout rights. Further, the copy might well contain items, such as tables, databases, lyrics and quotes which are sourced from other holders of copyright. And similar rights extend to any graphic advert that might be on the page as these would have copyright owners of the design and content.
But it is not all restrictions, although there are fewer exemptions than one might expect in the 45 paragraphs and 18 sub paragraphs in the relevant chapter of The Act. These include educational use and adapting copyright material for the visually impaired. When offering for sale works of art it is normally permissible to reproduce the item.
The general principle that ideas cannot be subject to copyright, only the form in which they are expressed, was challenged by some of the joint authors of The Holy Blood and the Holy Grail, when they alleged that Dan Brown, in his book The Da Vinci Code, had copied their ‘central theme’. However, on appeal it was found for Brown.
Copyright is time limited but these limits vary.
Material on the web is similarly protected, although cognisance is taken of the technical reproduction requirements of the technology. For websites and other transmitted material such as email marketing it is advised that the (c) sign be put on every page with the year of creation and the copyright holder identified.
There is no requirement for the material to have any aesthetic or material value to be protected nor to be registered as copyright.
The general rule is that if someone has created it, then they or, the person to whom they have transferred the rights, own the copyright. ‘It’ includes: original artistic works including paintings, photographs, literary, dramatic and musical material, sound and video recordings, including broadcasts live or otherwise, and applies to any medium, including publishing on the internet and in email marketing.
On a practical note, if an article, picture or such has already been published then the copyright owner is often very amenable to having it seen in print again as long as there is suitable acknowledgement of source as this can provide a bit of free advertising. Even if a fee is required, it is often set quite low.
When an article is published in a magazine for instance, it is only ‘first serial rights’, briefly the right to publish it the first time, that are transferred. The copyright for further publication normally remains with the author.
You might think a photocopy of a particularly complimentary magazine article in an email or on your website might well generate reassurance amongst potential customers. But this can be quite difficult as the norm is that multiple agents have various rights to it and you might be daunted by the task of obtaining it all.
For instance, there is the person who wrote the words for the article, then those who took the pictures, frequently sourced from more than one person, the graphic artist who created the layout for the specific article and the person who owns the general page layout rights. Further, the copy might well contain items, such as tables, databases, lyrics and quotes which are sourced from other holders of copyright. And similar rights extend to any graphic advert that might be on the page as these would have copyright owners of the design and content.
But it is not all restrictions, although there are fewer exemptions than one might expect in the 45 paragraphs and 18 sub paragraphs in the relevant chapter of The Act. These include educational use and adapting copyright material for the visually impaired. When offering for sale works of art it is normally permissible to reproduce the item.
The general principle that ideas cannot be subject to copyright, only the form in which they are expressed, was challenged by some of the joint authors of The Holy Blood and the Holy Grail, when they alleged that Dan Brown, in his book The Da Vinci Code, had copied their ‘central theme’. However, on appeal it was found for Brown.
Copyright is time limited but these limits vary.
Material on the web is similarly protected, although cognisance is taken of the technical reproduction requirements of the technology. For websites and other transmitted material such as email marketing it is advised that the (c) sign be put on every page with the year of creation and the copyright holder identified.
There is no requirement for the material to have any aesthetic or material value to be protected nor to be registered as copyright.
The general rule is that if someone has created it, then they or, the person to whom they have transferred the rights, own the copyright. ‘It’ includes: original artistic works including paintings, photographs, literary, dramatic and musical material, sound and video recordings, including broadcasts live or otherwise, and applies to any medium, including publishing on the internet and in email marketing.
On a practical note, if an article, picture or such has already been published then the copyright owner is often very amenable to having it seen in print again as long as there is suitable acknowledgement of source as this can provide a bit of free advertising. Even if a fee is required, it is often set quite low.
When an article is published in a magazine for instance, it is only ‘first serial rights’, briefly the right to publish it the first time, that are transferred. The copyright for further publication normally remains with the author.
You might think a photocopy of a particularly complimentary magazine article in an email or on your website might well generate reassurance amongst potential customers. But this can be quite difficult as the norm is that multiple agents have various rights to it and you might be daunted by the task of obtaining it all.
For instance, there is the person who wrote the words for the article, then those who took the pictures, frequently sourced from more than one person, the graphic artist who created the layout for the specific article and the person who owns the general page layout rights. Further, the copy might well contain items, such as tables, databases, lyrics and quotes which are sourced from other holders of copyright. And similar rights extend to any graphic advert that might be on the page as these would have copyright owners of the design and content.
But it is not all restrictions, although there are fewer exemptions than one might expect in the 45 paragraphs and 18 sub paragraphs in the relevant chapter of The Act. These include educational use and adapting copyright material for the visually impaired. When offering for sale works of art it is normally permissible to reproduce the item.
The general principle that ideas cannot be subject to copyright, only the form in which they are expressed, was challenged by some of the joint authors of The Holy Blood and the Holy Grail, when they alleged that Dan Brown, in his book The Da Vinci Code, had copied their ‘central theme’. However, on appeal it was found for Brown.
Copyright is time limited but these limits vary.
Material on the web is similarly protected, although cognisance is taken of the technical reproduction requirements of the technology. For websites and other transmitted material such as email marketing it is advised that the (c) sign be put on every page with the year of creation and the copyright holder identified.
The supreme court of Canada in the recent case of Mattel Inc. V. 3894207 Canada Inc. has clarified the law concerning the issue of confusion as applied to famous trademarks. The case involved a numbered company which operated a chain of restaurants in the Montreal area under the trademark BARBIE’S. The numbered company filed a trademark application in order to protect its trademark. The application was approved by the trademarks office, but later opposed by Mattel Inc. on the basis that the mark was allegedly confusing with Mattel’s registered trademark BARBIE. The opponent, Mattel, brought forward survey evidence which demonstrated that, in the mind of the people surveyed, that there might possibly be a link between the applicant’s restaurant and the opponents trademark. Despite Mattel’s evidence, the opposition board rejected Mattel’s position. Mattel appealed to the Federal Court. The Opposition board’s decision was confirmed by the Federal Court and then again by the Federal Court of Appeal. Mattel appealed yet again to the Supreme Court of Canada.
The Supreme court dealt with two principal issues, namely the nature of confusion and the nature of the evidence used to find confusion. On the issue of confusion, the court accepted Mattel’s contention that the BARBIE trademark was famous. Indeed, the justices agreed with Mattel’s contention that the BARBIE trademark had reached the status of a cultural icon. Nevertheless, in the court’s opinion, the mark was famous only with respect to dolls and not with respect to restaurant services. While the court concluded that resemblance of the wares/services is not a requirement for a finding of confusion, a significant difference in the nature of wares/services used in association with two trademarks was an important consideration in determining confusion. Simply because the BARBIE trademark was famous with respect to dolls, that fame, in itself, did not render the mark famous in other areas such as restaurant services. In effect, the court held that since the “doll” business and the restaurant business appealed to different tastes and largely different clienteles, there was no likelihood of confusion between the two trademarks.
As to the issue of the survey evidence introduced by Mattel, the court dismissed it as irrelevant. The court noted that the test is one of likelihood of confusion, i.e. that there must be a finding that the two marks are likely to be confused. The court noted that the survey asked the question “Do you believe that the company that makes BARBIE dolls might have anything to do with this sign or logo”. The survey asked a question addressing the issue of possible confusion, not likely confusion. The court seemed to leave open the door for the possible relevance of this type of survey evidence, provided of course the wording of the question resulted in a clear test of likelihood of confusion. Of course, evidence of actual confusion would have been highly relevant; however, no such evidence was submitted.
While this case does seem to limit the scope of protection afforded to famous trademarks, the case did leave the door open to marks whose fame was such that confusion could be found even if the competing mark was used for very different wares/services. Indeed, the court sited the example of the VIRGIN trademark, which has been used with a diverse nature of wares and services including soft drinks, music, games, resorts, cellular phones, clothing, books, cosmetics, credit cards and even air lines. The fame of the VIRGIN trademark may be of such breadth that using a similar mark for an unrelated service or product may result in a likelihood of confusion. In essence, since the VIRGIN trademark is famous in such a variety of different areas, it is possible that the average consumer might be confused if confronted with a similar trademark in a line of business not presently occupied by Richard Branson’s group of companies.
 Duration: 00:01:09 View: 10 |
www.lawofficeofericjallenltd.com 866-487-6044 The Law Office of Eric J. Allen, Ltd handles criminal defense matters. For representation, contact the firm in Columbus, Ohio. |
 Duration: 00:01:08 View: 19 |
www.lacriminaldefenders.com 866-428-4036 Seymour I. Amster handles criminal defense appeals to get you the best results. We look at all the evidence presented in your case. Located Van Nuys CA we prov (more) |
There is no requirement for the material to have any aesthetic or material value to be protected nor to be registered as copyright.
The general rule is that if someone has created it, then they or, the person to whom they have transferred the rights, own the copyright. ‘It’ includes: original artistic works including paintings, photographs, literary, dramatic and musical material, sound and video recordings, including broadcasts live or otherwise, and applies to any medium, including publishing on the internet and in email marketing.
On a practical note, if an article, picture or such has already been published then the copyright owner is often very amenable to having it seen in print again as long as there is suitable acknowledgement of source as this can provide a bit of free advertising. Even if a fee is required, it is often set quite low.
When an article is published in a magazine for instance, it is only ‘first serial rights’, briefly the right to publish it the first time, that are transferred. The copyright for further publication normally remains with the author.
You might think a photocopy of a particularly complimentary magazine article in an email or on your website might well generate reassurance amongst potential customers. But this can be quite difficult as the norm is that multiple agents have various rights to it and you might be daunted by the task of obtaining it all.
For instance, there is the person who wrote the words for the article, then those who took the pictures, frequently sourced from more than one person, the graphic artist who created the layout for the specific article and the person who owns the general page layout rights. Further, the copy might well contain items, such as tables, databases, lyrics and quotes which are sourced from other holders of copyright. And similar rights extend to any graphic advert that might be on the page as these would have copyright owners of the design and content.
But it is not all restrictions, although there are fewer exemptions than one might expect in the 45 paragraphs and 18 sub paragraphs in the relevant chapter of The Act. These include educational use and adapting copyright material for the visually impaired. When offering for sale works of art it is normally permissible to reproduce the item.
The general principle that ideas cannot be subject to copyright, only the form in which they are expressed, was challenged by some of the joint authors of The Holy Blood and the Holy Grail, when they alleged that Dan Brown, in his book The Da Vinci Code, had copied their ‘central theme’. However, on appeal it was found for Brown.
Copyright is time limited but these limits vary.
Material on the web is similarly protected, although cognisance is taken of the technical reproduction requirements of the technology. For websites and other transmitted material such as email marketing it is advised that the (c) sign be put on every page with the year of creation and the copyright holder identified.