Thursday, July 14, 2011

When You Give This Horse Wings It's Still Brand Dilution

It's a car ..., it's a plane ...
Picture: Danny Friedmann

... it's a piano.
 Times Square, Causeway Bay, Hong Kong
Picture: Danny Friedmann
The Pegasus Guoqin costs more than 2.86 million Renminbi (over US $410,000). Although it is painted in the "Ferrari rosso" (rosso corsa) colour, has a horse on top (although with wings, just like Pegasus), you will not find Ferrari "horse power" inside, instead a Schimmel piano. If Ferrari registered the famous red colour (if it gained a secondary meaning) it could have, in combination with the horse figure cause confusion with the public about whether Ferrari endorsed the product. Then again Ferrari trademarked the signs in the trademark classes for cars, not pianos. Therefore, in the case that Ferrari is not competing with pianos and in the absence of a likelihood of confusion, the real question is: Does it dilute Ferrari's world famous brand by blurring? 

The piano is on offer in Hong Kong. Does Hong Kong's jurisdiction have anti-dilution laws?
Article 18 (4) Trademarks Ordinance 2003: A person infringes a registered trade mark if-
(a) he uses in the course of trade or business a sign which is identical or similar to the trade mark in relation to goods or services which are not identical or similar to those for which the trade mark is registered;
(b) the trade mark is entitled to protection under the Paris Convention as a well-known trade mark; and
(c) the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or repute of the trade mark.

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