A weighty trade mark issue for the US courts

The IPKat has learned from Reuters that Weight Watchers is suing Nestle for trade mark infringement in the District Court of Southern New York. Weight Watchers claims that Nestle has displayed trade marks relating to Weight Watchers and its points system on its Skinny Cow ice creams and Lean Cuisine ready meals. Weight Watchers fears that this may confuse consumers into thinking that it has endorsed Nestle's products. Nestle meanwhile runs its own weightloss programme, Jenny Craig Inc.

This looks to the IPKat like a rather unconventional interoperability case. Can you use someone else's trade mark to tell them that you food fits into their diet programme? Even if you can, should you do it in a way which doesn't cause confusion?

Michael Jackson's trade mark troubles

The IPKat was interested to read an Associated Press piece about the aftermath of Michael Jackson's death in IP terms. His passing, in common with that of other celebrities who have died young (such as Elvis Presley and Marilyn Monroe) has spawned a huge demand for memorabilia, which often isn't licensed. The Jackson estate has said that it will take action against unauthorised sellers, noting:

"The sale of unauthorized Michael Jackson merchandise is illegal and provides nothing for the beneficiaries of his estate, namely his mother, his children and charitable causes that were important to him".

A new phenomenon, though, is that the death has resulted in a huge increase in illegal file sharing of Jackson's songs, as well as of legitimate sales.

Matters are complicated by the fact that Jackson did not register the term THE KING OF POP and only registered the term MICHAEL JACKSON for sound recordings, videotapes and films involving music and entertainment.

The IPKat notes that the same old problems keep coming up with merchandising. How many people would really believe or care whether Jackson or his estate authorised the sale of t-shirt purchased in a spontaneous outpouring of grief? Being cyncial, the Kat also suspects that it would be worth the estate's while to let at least some of this slide in the immediate aftermath, not least because it will cement the (merchandisable) personality cult.

EU identifies IPRs as trade barrier with US

The IPKat learns from IPWatch that the European Commission has issued a report highlighting trade barriers between the US and the EU. After stressing the closeness of the EU/US trade relationship, the report explains its purpose thus:

This annual report on U.S. trade barriers from the European Commission highlights some of the impediments that the European Union encounters when doing business with the U.S. The barriers described range from the small and relatively easily addressed to larger, more complicated problems, including challenging regulatory questions and some issues that have been or are being litigated at the World Trade Organisation. No matter the size or economic impact, all barriers need to be addressed, as far as possible, to help maintain and strengthen both transatlantic confidence and broader faith in the multilateral trading system.

Included are a number of IP-related trade barriers, namely:

• The US exemption for small businesses from paying copyright royalties (even though the US has lost a WTO case on the issue
• The lack of broadcast rights for producers and performers under US law (even though such rights are afforded to their US counterparts under EU law)
• Difficulties regarding GIs, particularly various European wine names classed as 'semi-generics' in the US
• Failure to inform patentees when the US authorities are going to use a patent
• s.337 of the Tariff Act 1930, which allows the owners of US IP rights to keep infringing articles out of the US
  
• The Havana Club case, whereby trade marks identical or similar to those owned by confiscated Cuban entities cannot be registered or renewed
• The US's first-to-invent patent system (though the report notes that the US is becoming more accepting of the first-to-file system)
• The Hilmer doctrine (excluding certain European prior art)
• Differences in patentability of business methods and computer software
• Differences concerning encryption products
  
• Strictures involving US plant variety rights
  

The IPKat reckons that these barriers are common knowledge. The impact comes from gathering them all together and placing them in the wider context of trade relations.

Birmingham to protect the Balti?; Google Book antitrust probe

Will Brum GI plan curry favour?

The IPKat is a little puzzled to read the news on the BBC that Birmingham City Council is pondering whether to get protected geographical status for the name Balti. A Balti is a hybrid British-South Asian curry, which is said to have originated in Birmingham in the 1970s. Unlike other curry dishes, they are subjectecd to high temperatures for the final 10 minutes of cooking. They are served in restaurants across the UK, without rice, in a special metal dish. While their Pakistani predecessor would have been slow-cooked and served on the bone, the meat in a Balti is served off the bone. The proposal has been welcomed by curry aficionados, who have expressed concern that recently the dish has been served on plates.

The IPKat thinks this smacks of protectionism. It looks like an attempt to turn back the clock and exclude others who are using the method of cooking from identifying it as such.

Google Book Deal - antitrust investigation

The LA Times reports that the US Department of Justice has notified the judge overseeing the Google Book Deal case that it is investigating the Google Book Deal for potential antitrust violations. The concern arises over aspects of the agreement in relation to orphan works. It would see Google being uniquely entitled to scan and distribute out-of-print works, arguable giving Google a monopoly on such works, and excluding other companies from similar practices.

The IPKat doubts whether this will be an easy decision for the DOJ. While the agreement may raise monopolistic concerns, the Kat suspects that the creation of the resource is such a massive undertaking that it might only come into existence if exclusivity is given.