Valuing the Invaluable: US Government Looks at IP’s Contribution to Economy

The US Commerce Department, in conjunction with the US Patent and Trademarks Office, recently issued a report that looked at the economic contributions of intellectual property to the US economy.  It’s no joke.  It is estimated that intellectual property-intensive industries contribute more than $5 trillion and 40 million jobs to the US economy, which represents more than a quarter of the work force. 

Confirming that the function of intellectual property is to reward ingenuity, the Commerce Secretary stated that:

“When Americans know that their ideas will be protected, they have greater incentive to pursue advances and technologies that help keep us competitive, and our businesses have the confidence they need to hire more workers.”

Simply put, innovation creates opportunity and the government should encourage it. 

Intellectual property protection enhances a business’ success at every stage:

• creates incentives to create
• rewards ingenuity
• protects against copying
• qualifies intangible assets
• creates a platform for corporate valuation and investment
• creates additional revenue streams by way of licensing

In a highly creative and competitive industry such as the fashion industry, intellectual property protection should be a front and center business tool.  Not surprisingly, the fashion industry was included in the top 50 trade-mark intensive industries.  Interestingly, the trade-mark intensive industries accounted for the highest employment rates, surpassing patent intensive industries.  

It’s the End of an Era

CanadaFashionLaw respectfully requests a moment of silence.  There has been a significant death in the fashion industry.  After 27 years on air, Canada’s Fashion Television has been cancelled. 

Before the explosion of mass media onto the fashion scene, Jeanne Beker founded Fashion Television in 1985.  This was the first of its kind.  Initially, it launched as a 15 minute segments.  It since morphed into a sophisticated, award winning, globally syndicated weekly half hour show.  In fact, a Fashion Television channel debuted in 2001. 

No reason was given for the cancellation, however, parent company Bell Media assured that Jeanne Beker will remain a player in the industry.

Canada Sounds Off

CanadaFashionLaw recently reported on interesting developments with regards to Canada’s foray into the non-traditional trade-marks world.  Although Canada may be a late-comer to the party, it certainly is playing catch-up.  Today, the Canadian Trade-marks Office issued a Practice Notice stating that effective immediately it will accept sound mark applications.  Does anyone else have a mild case of whiplash from this quick turnaround? 

 So here’s the 411 if your business is thinking of obtaining trade-mark protection for a sound:

• The application must state that the application is for the registration of a sound mark;
• The application must also include a graphic representation of the sound, along with an electronic recording and description of the sound.

The Canadian Trade-marks Office can call into question the registrability of the trade-mark with the usual suspects: functionality, clearly descriptive and/or deceptively misdescriptive.  It is possible to assert the registrability of the trade-mark by demonstrating that the sound has acquired distinctiveness. 

Interestingly, it is not possible to file a sound mark application online and, therefore, the cost will be moderately higher. 

Stay tuned to CanadaFashionLaw to see who takes the first steps.

Will The Canadian Trade-marks Office Get Its Groove On?

Ever eager to keep our readers in tune with the latest developments, CanadaFashionLaw is excited to share some red hot news.  (Ok – yes it’s about trade-marks law, but it’s still pretty interesting!)  Last week, the Canadian Trade-marks Office issued a notice that it has launched a consultation period aimed at amending the Trade-marks Regulations.  Yawn?  Maybe yes, maybe no. 

What caught our attention is the possibility that the Canadian Trade-marks Office may be ready to accept sounds as trade-marks.  To date, Canada has taken a hard line position that in order to be recognized as a trade-mark, the trade-mark must be visual.  Based on this threshold, slogans, logos, three-dimensional shapes, etc., can all function as trade-marks.  But what about sound, smell or touch?  Nope.  These cannot yet function as trade-marks in Canada.  Is this inline with modern day branding?  Arguably no.  Is Canada’s trade-marks system lagging behind those of other countries?  Arguably yes. 

Always wanting to show trade-marks at work in the real world, CanadaFashionLaw has provided some fun examples of what could possibly qualify as a sound mark:

 Example Numero Uno

 

You’re at a movie (I’m setting a scene – go with it). 

It’s a first date. 

The lights dim.  The popcorn is too salty.

A lion’s roar startles you. 

Chances are you’re at a movie produced by Metro-Goldwyn-Meyer Lion Corp.

Example Numero Duo

 Frustratingly, your date’s phone rings in the middle of a gripping scene of the movie.

The phone’s ring has a very distinctive 4 note descending tune.

Could it be that your date is using a NOKIA phone?

 

Example Numero Trio

Ok.  The date is clearly not going well. 

Not only is your date taking calls, but you hear the clicker clacker of typing.

You hear a long drawn out southern drawl “YAHOOOOOOOOOOOOO”.

Could it be that your date is IM’ing via YAHOO?
The date ends early.

A number of other countries have had a far more liberal view than Canada of what could constitute a trade-mark by allowing non-traditional trade-marks to be capable of registration.  Now that Canada is finally thinking about stepping up its game, it will be interesting to see how this will all play out.

In the consultation paper, the Canadian Intellectual Property Office is eager to hear from stakeholders, both large and small, on their perspective.  Should Canada venture further into non-traditional trade-marks?  If yes, what should be the threshold for registration?  Should the applicant be required to prove acquired distinctiveness in order to gain trade-mark rights to a sound?  Should specimens be included in the application?    

The deadline to provide this input is April 23, 2012.  It’s likely that the heavy hitters such as INTA and IPIC will put in their submissions.  Law firms have also been known to draft up submissions on behalf of their clients. 

CanadaFashionLaw is interested to hear your thoughts…

Birds of a Feather Do Not Flock Together

International Clothiers Inc. is getting well-acquainted with Canada’s Federal Court.  Previously, CanadaFashionLaw advised of Target’s aggressive strategies prior to actually launching in Canada, which involved International Clothiers Inc.  Now they are on the receiving end of another alleged trade-mark infringement case.  This time it’s Canada Goose that's spreading its wings.

Canada Goose recently issued a Statement of Claim against International Clothiers Inc. alleging trade-mark infringement of its trade-marks.  Canada Goose alleges that not only are the trade-marks confusingly similar, but the trade-mark placement and certain design elements of the apparel themselves are also confusingly similar.

In its Statement of Claim, Canada Goose states that it has incurred significant money in marketing its products and brand throughout North America, which has significantly paid off as its notoriety has spread throughout the continent. 

Given the alleged sub-standard quality of the apparel sold by International Clothiers Inc., Canada Goose believes that its reputation and goodwill is becoming tarnished by International Clothiers. 

As of today’s date, International Clothiers Inc. has yet to file its Statement of Defence.  This should be an interesting Canadian battle – stay tuned to CanadaFashionLaw for developments!