Undecent Miffy Bunnies Spotted In Macau

Warning: This article contains material which may offend and may not be distributed, circulated, sold, hired, given, lent, shown, played or projected to a person under the age of 18 years.

Let me first refresh your memory about IP relevant rabbits and then tell you about my encounter with the undecent two Miffy bunnies in Macau.

Miffy is the English name of the Nijntje (konijntje = little rabit) cartoon figure, created by Dick Bruna. Kathy (in many articles this name is written with a C) looks very similar to Miffy and is a cartoon by Sanrio, the same company that created HelloKitty. To distinguish the two alleged "cute" rodents. Miffy nose is an X, and Kathy's nose is a O.

Rabbits are known for their talent to reproduce, but Mercis, the company representing Miffy's creator, Dick Bruna, held that there can be only one: Miffy, based on Miffy's Dutch copyright and Benelux trademark.
November 2, 2010, the judge responsible for interim relief (voorzieningenrechter) Amsterdam Regional Court (Rechtbank Amsterdam) agreed with Mercis that Sanrio infringes both Mr Bruna's copyright and trademark for Miffy. Read the judgment here. Sanrio decided to appeal the decision.

Then March 11, 2011 Japan was struck by natural disasters. This seems to have relativised both parties, because in the beginning of 2011 they settled the matter out of court and decided to donate 17,5 million yen (155,000 euro) to the victims of the natural disasters. And Sanrio will exit Kathy, read Catherine Lee's article for IP Kat about it here.

Read more here.

Japanarchist and Givemeabreakman with Tomoko give an overview of the Miffy versus Kathy, rabbit fight and reconciliation.

In a shop at the Calçada da Barra, a sinister street in Macau, the Dutch Miffy is depicted on each plastic bags. Now the bag does not show whether or not the maker of bags has a license to use the copyrighted Miffy. In Macau's Online Trademark Registration Search System I could not found Miffy as a Macanese trademark. My impression was that this is a school example of passing-off, although it is called judicial action for unfair competition (articles 156-173 Commercial Code of Macau).

The Calçada da Barra might as well be named Sodom and Gomorrah for its aberrant disrespect of IP.

Each sold product, unrelated to Miffy, was put in a Miffy bag

In bright daylight I was exposed to the plastic bag. 

Two Miffy bunnies are depicted here tastelessly topless.
Mr Bruna could invoke its moral rights based on his copyright.
Another option might be trademark tarnishment,
if Miffy is a well known mark in Macau and if trademark dilution is possible under Macanese law.

continue reading ...

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.

continue reading ...