July 9, 2009
Mars has failed to obtain trademark protection for the bounty coconut bar.
The European Court of First Instance in Luxembourg declared:
”The allegedly distinctive characteristics, namely the rounded ends of the bar and the three arrows or chevrons on top of it, cannot be sufficiently distinguished from other shapes commonly used for chocolate bars.”
The verdict is a victory for Ludwig Schokolade, a German chocolate manufacturer, which challenged a decision taken by the EU’s trade mark office in 2003 to approve Mars’s application to register the Bounty’s shape as a trade mark across Europe.
The German manufacturer has been making chocolate-covered coconut bars for British supermarkets like ASDA since1990 and claimed it was making 14 million bars a year. Nestle Rowntree supported the Germans claims at various times.
In 2007 the trade mark office binvalidated the trade mark on the grounds that it was not distinctive enough since the shape “does not depart significantly from the norms and customs of the relevant sector”.
The Court of First Instance acknowledged that a shape could be trademarked if it had acquired distinctive character through usage.
For the shape of a product to qualify to be registered as an EU trademark, it must “depart significantly from the norms and customs of the sector to enable the average consumer to distinguish immediately and with certainty the product concerned from those of other undertakings”. Apparently, without it’s wrappings, the Bounty bar is simply not distinctive enough.
I must admit, that when compared to say, Curly Whirly, Tottiffee or Toblerone, there is something, well candybar shaped about Bounty.
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Posted by Dr Michael Factor
July 9, 2009
In a recent 144 page encyclical letter [Link], Pope Benedict XVI has come out against overly strong patent rights, particularly in the field of health care. According to his Holiness, these favor the rich, developed countries at the expense of the poor.
“On the part of rich countries there is excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property, especially in the field of health care.”
For more details, see http://www.patentlyo.com/patent/2009/07/the-pope-on-patents.html?cid=6a00d8341c588553ef011570f1ce62970c
The USPTO take a somewhat different stand and are apparently working on educating the public and presumably the Pope on how patents promotes knowledge and human development. It is unlikely that drug development companies will develop drugs without patenting them as a charitable action.
There have been some cases of free patent distribution or subsidizing of drugs in the third world. Sometimes drug researchers put patents into the public domain, for a recent example, see http://www.boston.com/business/healthcare/articles/2009/07/09/alnylam_to_add_rnai_patents_to_pool/ Even without that, the richer countries do subsidize drugs and health care in the developing world through the World Health Organization, medical assistance and the like. Even treatments that are no longer patent protected that were developed 25 years ago, would would probably not have developed without first world investment.
Anyway, I do wonder if the Pope is merely speaking out against attempts to provide further patent term extensions, is commenting on the EU probe and recent US investigations into alleged deals between the generics and the pharma patent holders not to challenge pharmaceutical patents, or, if whilst in Israel recently, did his holiness visit Teva and Unipharm?
For the pope on his encycle, see http://www.cartoonstock.com/newscartoons/cartoonists/ksc/lowres/kscn160l.jpg
and
http://www.splendoroftruth.com/curtjester/archives/008801.php
and for those that don’t know the joke: http://www.gentle.org/News/article/sid=118.html
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Posted by Dr Michael Factor
