FaceBook face-off continues

This Kat watched the film The Social Network for the dramatic story of the creation of and ownership claims to FaceBook, the world's most famous social networking site. The film concluded with FaceBook CEO Mark Zuckerberg settling claims in 2008 with twins Cameron and Tyler Winklevoss and with Eduardo Saverin.

Although the film ended (and Academy Awards were collected), the legal wrangling continues. The Winklevoss twins now allege that the settlement which they reached in 2008 with FaceBook should be voided on the basis that it was procured by fraud. In the Federal Courts in San Francisco (California) and in Boston (Massachusetts), they particularly contended that FaceBook and Mr Zuckerberg did not provide an accurate valulation of the company shares before they agreed to settle their claims for US$65 million cash and stocks.

On 11 April 2011, the 9th US Circuit Court in San Francisco (at 4911) found the agreement between the Winklevosses and Facebook barred future lawsuits and was 'quite favorable' to the twins in relation to market activity at the time: The Facebook Inc v ConnectU Inc. The Court concluded (at 4912) with the prophetic words 'At some point, litigation must come to an end. That point has now been reached'.

Despite the forceful position of the lower court, the twins are fighting on. On Monday 13 June 2011, the US Court of Appeals in San Francisco agreed to suspend litigation related to the Winklevosses’ lawsuit until they file a petition with the US Supreme Court to reverse the dismissal of their claims by the 9th US Circuit Court in San Francisco. That means Facebook and Mr Zuckerberg cannot attempt to dismiss the separate lawsuit in the Boston court.

The IPKat thinks that enough is enough. The Winklevoss twins made their agreement in 2008 with the assistance of qualified advisers. They should not be able to avoid an agreement merely because they now want a bigger slice of the pie (or perhaps FaceBook's proposed public float in 2012).

With the parties again firmly entrenched in their positions, Merpel wonders whether someone should line up Aaron Sorkin for The Social Network 2. This one looks like it is set to go on for some time more ...

Goodbye Cathy: Hello Kitty and Miffy settle copycat case

This Kat has been a fan of Hello Kitty since discovering her on a high school exchange trip to Japan many years ago. Therefore, she is most interested in the copyright proceedings involving Hello Kitty's friend Cathy the rabbit and the Dutch rabbit Miffy.

Hello Kitty is a popular children's character created by Japanese design company Sanrio. She is a little half-Japanese, half-English cartoon cat: small, rounded with a red bow between her ears and no mouth. She made her debut in 1974 and is now the face of a cartoon series and numerous merchandise spin-offs. Hello Kitty has become such a global phenomenon that she appears on everything from purses, stickers, jewellery and pen sets to toasters, televisions, clothing, credit cards and computer equipment all over the world.

Cathy is one of the friends of Hello Kitty. She debuted in 1976 and has similarly appeared in the cartoon series and on merchandise. Cathy appears as a white rabbit with upright ears, wearing a tunic which is the same colour as a bow between her ears.

Miffy is a small white female rabbit who was created by Dutch artist Dick Bruna. She first appeared in a children's picture book in 1955 with floppy ears and has been in her current form with upright ears since 1963. She is drawn in a minimalist style, with only a few lines and one or two primary colours. She has gone on to appear in approximately 30 more books (selling 85 million copies worldwide) as well as in a cartoon series and on merchandise such as toys, clothes and stationery.

Mr Bruna has made no secret of his disdain for all things Hello Kitty. In an interview in 2008 with The Telegraph, Mr Bruna stated that the Cathy character:

'is a copy [of Miffy], I think. I don't like that at all. I always think, "No, don't do that. Try to make something that you think of yourself".'

It came as no surprise to anyone then that Mr Bruna would eventually bring an action against Sanrio. Proceedings were brought in The Netherlands by Mercis Media BV (Mr Bruna's copyright management firm) on 26 August 2010. Mercis Media alleged that Sanrio's Cathy character infringed the copyright and trade marks of its Miffy character. Mercis Media sought a provisional disposition order for suspension of the manufacture and sale of Cathy character items and other terms.

On 2 November 2010, the Amsterdam Regional Court found in favour of Mercis Media. It ordered Sanrio: (a) to stop to any production, sale and marketing of Cathy character goods in the Netherlands, Belgium and Luxembourg; and (b) to pay €25,000/day if it did not comply, up to a maximum of €2m.

Sanrio appealed the decision. After the ruling in November 2010, it stated that:

'We object to this ruling and do not believe any copyright infringement took place, a view we intend to express legally ... At this point, we believe any impact on company earnings will be limited'.

Further proceedings on the merits were brought by Mercis Media, whilst Sanrio filed a counter claim seeking the Miffy trade mark to be removed from the register.

This Kat has learned that the parties have settled out of court. On 7 June 2011, the companies issued a joint statement announcing they had reached 'a worldwide settlement' of all pending actions. As part of the terms, Sanrio will no longer use the Cathy character and both will donate €150,000 jointly to the victims of the earthquake of 11 March 2011 in Japan rather than spend money on legal fees. Further, both Mercis Media and Sanrio will make considerable efforts to keep a respectful distance from each other’s characters.

The IPKat is saddened by the loss of Cathy, but is glad that the parties were able to reach an amicable settlement with a humanitarian element.

Merpel is all for merchandising and the legitimate exploitation of copyright and trade marks, but suggests that a possible IPKat toaster with a toast 'branding' option would be stretching the friendship ...

Absolution for Absolute as dispute with Absolut settles

An article in The Guardian today, "Absolute Radio settles trademark fight with Absolut vodka", reports on the end of what might have been a long and entertaining court dispute between Absolute Radio and Swedish vodka brand Absolut. The vodka maker sued the UK music station for trade mark infringement and passing off but today's settlement, the terms of which are confidential, has scotched the chance of further proceedings.

Absolut, the jewel in the crown of V&S Vin&Sprit, was not best pleased when the Times of India Group purchased Virgin Radio and renamed it Absolute, being concerned that there would be a risk of confusion between the two. A spokesman for V&S has now expressed pleasure at the outcome of this dispute, "which will enable us to continue to develop the iconic Absolut brand without risk of confusion to the public." Absolute Radio is equally pleased, for obvious reasons.

While the terms of settlement are confidential, says the IPKat, it shouldn't be long before the public gets some idea of what they contain: all they have to do is watch carefully and see how the two brands market their respective goods and services nonconfusingly. Merpel adds, I wonder whether there's more to this matter than the report suggests: likelihood of confusion is something I associate with similar goods and services: it's not obvious to everyone, though, that radio stations and vodka can be termed "similar".

Make your own radio station here
Make your own vodka here