1 February 2011

The Spy Who Loved Her Name


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IMG_9950photo © 2010 zemistor | more info (via: Wylio)

Do you remember the bank that trademarked “Christmas”? Can happen only in Russia, right? Well, the land of Tolstoy, Bakunin and Putin shows once again that it is always good to provide for news relating to intellectual property!

The current case I would like to spend some words on is not as outrages as the “Christmas” one, though it involves a personality who not long ago gained a huge medial publicity.

Like to guess who might that be? Hm, what was this blog article’s name in the first place?

Yes, I can be talking only about Anna Kuschyenko, also known as Chapman! According to the Russian newspaper Komsomolskaya Pravda, the spy scandal heroine has successfully been granted the right to use her name as a trade mark for the classes 3, 14, 25, 28, 32, 33, 35 and 41. In doing so, Chapman obviously did what many others had already done in the past.

In this respect people have often asked me:

Are personal names registrable as trade marks?

In all generality, yes. While treated as descriptive signs and hence “weak” marks in the US, they are to be assessed exactly the same way as any other prospective trade marks in the European Union.
In other words, both jurisdictions allow the registration of personal names with their respective trade mark offices.

Apparently the same is true also under Russian trade mark law. Nevertheless, there is one thing I don’t really feel kosher about when considering the registrability of the Chapman mark. After all she was accused to have participated in an espionage affair and thus deported back to Russia. I would have classified those circumstances disparaging, had I been appointed to examine Ms Chapman’s application and, would have eventually rejected it. But Russia is different and we all know that. Russia loves its spies and treats them as heroes. Would it be then permissible to ask:

Was the trade mark registration Russia’s payoff to Ms Chapman?

I am afraid we will never figure this one out. In any case she spied in her country’s name, did love its own and succeeded in trademarking it!

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18 January 2011

Open source governments


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Video: The DoD makes it official: open source IS commercial software.photo © 2010 opensource.com | more info (via: Wylio)

In the course of my work I am here and there asked to advise on open source software (OSS) matters. But for whatever reason, since the beginning of 2011 I had to almost daily read, write or listen to something related to OSS. In the most cases, the OSS in question was somehow connected to a use in the public sector. So, I decided to write a blog article on that.

For the mere sake of clarity and for those readers not familiar with what open source software is – take a look at the definition issued by the Open Source Initiative (OSI).

Most people hardly know it, but open source software is everywhere: it is in computers, smartphones or even refrigerators. The industry discovered it long ago and has successfully deployed it since then. As a consequence of the commercial success, as early as 2001 governments started demonstrating their interest in using OSS. In 2003 the municipality of Munich, being the first worldwide, started the LiMux project that aimed to migrate that city’s 15.000 desktop clients from Windows to Linux. The floodgates opened wide and many others followed the Bavarian approach.

Now, some years after that event, OSS is present on the realms of numerous governments around the world. Not only that, many countries have issued legislation to even foster the spread of OSS. Likewise, the European Commission considers it the digital fuel behind their e-government projects. Very recently, Russia’s Prime Minister Vladimir Putin instructed the federal government agencies to switch to free and open source software by 2015.

An interesting development, is it not?

Besides, the OSS triumph has raised several legal questions. Legal writers have spent tons of both, analog and digital ink to determine whether “government’s acquisition of OSS is subject to public procurement law” or “the installation of OSS within different offices of the same agency constitutes a distribution or a conveyance in the sense of GNU/GPL“. The most of those questions have still not been satisfactorily answered or tested in court.

Either way, I am happy as to governments’ decision to embrace and endorse OSS. Still, there are many steps to take. But in a decade, one might turn around and say “wow, what a giant leap for mankind”.

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12 January 2011

From Russia with (trade mark) love: a reprise


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Image: “Jing old bells” by Madalena Pestana on Flickr

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About a year ago I blogged on the “Christmas” trade mark that the Russian bank Vostochny Express managed to register. In that post I expressed some doubts as to the registrability of the trade mark in question. Well, I must admit that was really surprised when I found out that Vostochny Express succeeded to defend its trade mark at court in Moscow.

The bank has brought an action before the Moscow Court of Arbitration (a court competent in commercial matters) against another bank, Bank Rossisky Capital, that had used the word “Christmas” on its website. Claimant alleged the use on the website was one in commerce and thus infringing claimant’s rights in the trade mark.

Surprisingly to me, but the court found that defendant’s use was capable of creating confusion between both banks’ products and services. Consequently, the court ordered the defendant to cease using the word “Christmas” in connection with its products and services.

All this would be quite funny if it was not absurd. Like other enterprises, banks also advertise their products and services, especially loans, more extensively during Christmas time. Since the essential function of a trade mark is to identify the origin of product or service, “Christmas” clearly fails to serve as such identifier. It simply cannot distinguish one bank’s business from that of another.

Vostochniy Express’ trade mark registration is definitely amiss and even borders with abuse of law.


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14 January 2010

From Russia with (trade mark) love


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I have always known that Russia and Russians are different. So totally different that they can hardly be compared with other nations’ representatives. And this appears to be true also with respect to their dealings with intellectual property.

According to the Russian newspaper Komersant, Vostochniy Express, a Russian bank, has successfully registered with Rospatent words like

“New Year”, “Christmas”, “Holiday”

as well as derivates thereof as trade marks. Not surprisingly, many banks issue promotional offers specially at Christmas or at year’s end. As a consequence of its trade mark grant however, Vostochniy Express has served such banks with cease and desist notices. The proprietor bank has alternatively offered to license the use of its “trade marks” against payment of license fees.

Vostochniy Express demonstrate they are

A Way Ahead In Making Business With Their IP Assets

This bank’s business drive could, however, be barred since the registration of the “trade marks” in suit has been referred to a board of appeal within Rospatent. Pursuant to the Russian trade mark practitioner Vassily Moiseev, the board of appeal is very likely to vacate Rospatent’s grant as it has frequently done in the past.

In my view Rospatent had to reject the registration as these very words are not really capable of distinguishing the products or services of Vostochniy Express from those of other banks. See whether the board of appeal will deliver a judgment consistent with mine.