Thursday, September 25th, 2008
A Canadian Press Story today reports that the Vancouver Organizing Committee for the 2010 Winter Olympic Games (VANOC) has recently filed applications with the Canadian Intellectual Property Office (CIPO) to register the phrases WITH GLOWING HEARTS and DES PLUS BRILLIANTS EXPLOITS as trademarks. These applications are filed based on proposed use in Canada in association with a lengthy shopping list of goods and services. They also claim priority from earlier filed European Community Trademark (CTM) applications, filed with the Office for Harmonization in the Internal Market (OHIM) in March of 2008. Interestingly, the CTM applications are filed in the name of Filemot Technology Law Ltd. and not VANOC.
Canadian readers will immediately recognize WITH GLOWING HEARTS and DES PLUS BRILLIANTS EXPLOITS as phrases from “O Canada”, the Canadian national anthem. Copyright buffs out there might already know that the anthem was long ago placed in the public domain by the Government of Canada pursuant to the National Anthem Act.
As word of VANOC’s plan has leaked ahead of today’s press release – see below, concerns have arisen that VANOC’s move will lead to enforcement of its trademark rights against people who sing the anthem in schools and at sporting events. Clearly that will not be the case: there is a difference between the copyright in the words and music of the anthem, and the use of some of those words as a trademark to indicate a particular source of goods and services. As sometimes happens, the public seems to have confused copyright and trademark issues – perhaps not surprisingly, as it also happens to lawyers who don’t practice in the area.
The irony of there being public concern at VANOC’s use in this regard is punctuated by a story in the Globe & Mail, in which the plight of a small Stratford, Ontario business is referenced, where that business claims to have already adopted and used the phrase WITH GLOWING HEARTS as a trademark in association with woollen clothing. This self proclaimed "Mom-preneur" is already talking about seeking advice from her own lawyer about her rights in the face of this imminent Olympic-sized onslaught. While the scale of the parties is obviously different, it’s not clear why there are not similar concerns about her use of this anthem-related mark for similar business purposes.
For its part, VANOC issued a press release today in which it announced that these phrases are now the official mottos for the 2010 Winter Olympic and Paralympic Games. The press release specifically addresses and attempts to allay the concern that VANOC will use any trademark rights for the purpose of stopping people from using and reproducing the national anthem, and more specifically these phrases, other than in a commercial context. One further point of interest – the french lyrics of the national anthem use the word “brillant” (with only one “i”) but the application filed by VANOC contains the word “BRILLIANT” (with two “i”s).
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Posted in Branding, Legislation, Protection & Enforcement, Registration | 1 Comment »
Monday, September 22nd, 2008
Here at the Canadian Trade-mark Blog, our first-ever post focused on Interbrand’s 2006 Best Global Brands Survey. As we’ve tracked the survey over the years, we’ve noted several constants – like COCA-COLA’s stranglehold on the number one spot, the predominance of US-brands in the top 10, and the sparse number of Canadian brands from the top 100.
The 2008 Best Global Brands survey was released last week, and little has changed: COCA-COLA took the top spot again and US-brands continue to dominate the top 10. However, we’re pleased to report that the list now features twice as many Canadian brands as last year.
At number 44 is THOMSON REUTERS – formerly The Thomson Corporation – who engaged in extensive advertising of its new brand following its merger with Reuters Group earlier this year.
Canada’s new addition? Charging in at number 73 is…
…Research In Motion’s
BLACKBERRY brand – a brand that we expected to see on this list some time ago. (While we’re speculating, it is likely that BLACKBERRY would have joined the party sooner, but for failure to meet Interbrand’s eligibility criteria, which include the need to have more than 1/3 of revenue originating from outside the brand’s home country.)
Review of the top 10 locates a couple of other notable changes: MICROSOFT drops from two to three (the VISTA effect?) with IBM taking over at the number two position; also GOOGLE surges from number 20 into the top 10 at number 10, buoyed by 43% increase in brand value over last year.
Other notables? H&M made its debut at number 22; APPLE rode the IPHONE up 11 spots to number 24; HSBC came in at number 27 and AMAZON jumped four spots to number 58.
New entries on the list include FERRARI at number 93, GIORGIO ARMANI at number 94, MARRIOTT at number 96, FEDEX at number 99 and VISA at 100, in addition to H&M and BLACKBERRY, discussed earlier.
The big losers? Financial services companies. Brands like CITI, MERRILL LYNCH, JP MORGAN, GOLDMAN SACHS, UBS, MORGAN STANLEY and AIG all lost ground over last year – and in the midst of this market correction, it’s a safe bet that these brands will continue to lose value over the next year.
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Posted in Branding, Famous Marks | No Comments »
Friday, September 19th, 2008
An update on a battle we previously blogged about: the fight between, in one corner, Hyundai Auto Canada, a division of Hyundai Motor America (“Hyundai Canada”); and in the other corner, Cross Canada Auto Body Supply (West) Limited, Cross Canada Auto Body Supply (Windsor) Limited and AT Pac West Auto Parts Enterprise Ltd. (together, for the sake of brevity, the “Resellers”).
You may recall that in that case, the Resellers were re-selling automotive parts and accessories, including Hyundai automotive parts and accessories, in Canada. The Resellers sought expungement of five Hyundai-related marks in Canada owned by Hyundai Canada, claiming that all of the marks were non-distinctive, and further claiming that three of the marks had been abandoned.
(This central action spawned several others: in one, Hyundai Canada sought – though ultimately failed to obtain – an injunction to preclude the Resellers’ use of the Hyundai-related marks on the automotive parts packaging they offered for sale. Other related actions included disagreements over the production of documents, and the appropriateness of photocopying and other charges.)
The Federal Court Trial Division rejected the Resellers’ allegations of non-distinctiveness, along with two of the three abandonment claims. However, the Court did conclude that one of the marks had been abandoned, and should be expunged. On appeal to the Federal Court of Appeal, that Court found no palpable or overriding error in the Federal Court’s decision, and accordingly dismissed the Resellers’ appeal.
Now, we have what is likely the final chapter in this story: yesterday, the Supreme Court of Canada announced its dismissal of the leave to appeal sought by the Resellers – with costs – apparently bringing this matter to an end.
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Posted in Case Law, Protection & Enforcement, Registration | No Comments »
