hokusai

Coco Chanel or Choco Chanel? You don’t know whether it’s better to satisfy your compulsive desire of fashion brands or your irrepressible desire of sweets? Here comes the solution… enjoy the pictures!

In a world more and more based on visual culture, with plenty of visual signs often registered as trademarks, what has to be done to stand out among the masses?

One of the best ideas, one may think, is to make leverage on the other senses, not only sight. If you produce motorcycles and you are not satisfied with your trademark, try to empower it by also registering the sound of your motorcycle’s engine, like Harley Davidson did. Ok, it’s not that easy, a Harley is always a Harley and its sound is unique, but that was just one example!

Recently, different news told us about some problems regarding the registration or protection of perfumes or smells as distinctive features of a product or company.

For example, the orange flavor is not registrable in the U.S. as a trademark. Indeed, in a case of first impression before the U.S. Trademark Trial and Appeal Board of June 14, 2006, the Board denied registration of “an orange flavor” as a trademark for “pharmaceuticals for human use, namely, antidepressants in quick-dissolving tablets and pills“.

In this specific case, the Court found that the orange flavor is a common characteristic in medicines and so cannot be considered a trademark but only as a feature of a product, lacking the distinctiveness required from a trademark.

Moreover, the Court spoke more generally about the case of flavor trademarks: ”Because flavor is generally seen as a characteristic of the goods, rather than as a trademark, a flavor, just as in the cases of color and scent, can never be inherently distinctive. As previously discussed, flavor, including an orange flavor, is so intrinsic a feature of pharmaceuticals, that consumers will not perceive a flavor, even a “unique” orange flavor, as a trademark unless they have been educated to perceive it as such. Thus, any registration of a flavor requires a substantial showing of acquired distinctiveness. Evidence of acquired distinctiveness was not introduced in this application”.

In Europe also we have some interesting cases related to this subject.

There is a growing jurisprudence for what concerns flavor trademarks. Last October, Eden Sarl failed in the attempt to register the scent of strawberries as a trademark. They wanted to use the smell to “brand” soaps, stationary, clothing and leather goods. The request was first denied by the OHIM and then again by the regional High Court. The Court, on the basis of a scientific research requested for the decision, ruled that “Strawberries do not have just one smell […] This means that the different varieties of strawberries produce significantly different smells“. So, since strawberries do not have a distinctive smell, they cannot be chosen for the distinctive function that a trademark has.

The decision followed an orientation of European courts that, in the past, have already denied trademark protection to the smell of raspberries, lemons, and leather. The only smell to be registered as a trademark is the the smell of grass given to a Dutch Tennis Ball Company.

Smells, however, do not only relate to trademarks. Recently, the Dutch Supreme Court has upheld a 2004 Court of Appeals ruling in favor of Lancôme and against Kecofa; this decision cleared the way for smells to be protected by copyright law in the Netherlands. In this case Lancôme denounced that Kecofa was producing a perfume almost identical to its famous “Trèsor”. Thanks to an expert report of a physical-chemical analysis of the two perfumes, the French company has been able to prove that over the 26 components used by Lancôme for “Trèsor”, Kecofa used 24 of them, and a cheaper substitute for the 25^th, for its perfume. The court ruled against Kecofa and, consequently, recognized the infringement of Lancôme’s copyright.

This long post just to have a brief overview of one of the other senses… can you imagine the issues related to touch or hearing?

Looking back to what I wrote on this blog, I fear to be considered just a stylish-anti-counterfeiting kinda guy, but, believe me, that’s not true.

So, to persuade you, this time I’ll speak about a critically serious counterfeiting-related issue: counterfeited drugs.

Counterfeiting, in fact, does not only mean cheap LV bags for which you paid just a few dollars which last one year, it also means the 10% of pharmaceuticals sold around the world which are fakes. In some developing countries, this figure is thought to be from 25% up to 50%!

Obviously, it comes without saying, this problem doesn’t affect the richest part of the globe, but mostly the poorest areas, where drugs are not distributed or, if they are, cost more than the one year’s salary of an average family.

In these kinds of drugs, if you find medicines that cost one tenth of the original price you don’t ask yourself too many questions and you take it. But the effects can be very serious.

Usually these kind of drugs are produced below any acceptable quality standard and are then relabeled with original or fake labels of the most known drugs. In developing countries the most commonly counterfeited drugs are the ones to heal HIV, Malaria, and Tuberculosis, while in developed countries the “victims” are more modern and trendier drugs like steroids and Viagra.

The Centre for Medicines in the Public Interest, in the United States, predicts that counterfeit drug sales will reach US$ 75 billion globally in 2010, an increase of more than 90% from 2005.

So, what can be done? First of all legislation has to change and to adapt its provisions to the new situation by improving the control over the production and distribution chain (it probably is the first time that the EU Directive sounds really sensitive to many people, isn’t it?!).

Internationally cooperation is needed to control the unlawful traffic of counterfeited drugs. The declaration of Rome, signed on February 18, 2006, establishes the guidelines for an effective international collaboration to combat this phenomenon.

Some companies, on the other hand, imitating the techniques used in other fields like money printing or copyrighted goods, are testing holograms, color-shifting inks and watermarks that can help them authenticate the package and authentic pills. Others are experimenting with using inks or dyes, and some are already using tamper-resistant packaging tape on some of their products.

I think it’s clear now why an effective enforcement against counterfeiting is necessary: it’s not all about fashion, it’s often about people’s lives.

Where, Who, When, Why and What: The five W are a pillar for every young journalist. A research recently commissioned by Davenport Lyons and conducted by Ledbury Research analyzes the phenomenon of counterfeiting from the consumers’ point of view in a very detailed way, and somehow defines the five W for this plague.

Some results are obvious and some others are surprising. As everybody can see on a street of our cities, as a matter of fact, the most common fake brands bought are Burberry, Gucci, Louis Vuitton and Yves Saint Laurent. According to the research, more than 2% of UK consumers – about 1 million people – bought fake Burberry or Gucci items in the past year. Counterfeits are sold mainly in shops, but online bids and sales are growing in importance (23% of the total).

But, and that’s surprising, the study destroys the oldest and most common belief about counterfeits: they are not bought by poor people only!

As a matter of fact, actually, people who buy fakes are often well-off spenders who are also more likely to purchase genuine brand-name luxury items.

All this said, it is clear that the battle against counterfeits, if it has to be fought, should not only be based on law issues and legal actions but also, and above all, on consumers education and awakening, in order to prevent the purchase and not merely punish it.

So, next time, before you buy your girlfriend a bag, don’t choose an original one just not to look like a poor guy, but because you really want to! And remember that girls are major fakes-buyers…