? Smells Like Childhood Nostalgia: Crayola trademarks the smell of wax crayons
? A "slightly earthy soap with pungent, leather-like clay undertones" - this is how the description of a niche brand perfume might look like. However, Crayola was ahead of everyone and registered this smell as a trademark for their crayons.

The road to obtaining this unique trademark was arduous. Initially rejected by the US Patent and Trademark Office (USPTO) in 2018, it took until July 2, 2024, for the Trademark Trial and Appeal Board (TTAB) to grant approval for the registration of the crayon scent as a trademark associated with Crayola. Indeed, it is difficult to trademark something so intangible: a smell must be unambiguously associated with a specific manufacturer and lack functional purpose.

? This journey mirrors that of Celia Clarke, who wanted to register a floral fragrance as a trademark for yarn, and also faced an initial rejection from the USPTO. She managed to achieve her goal only in the TTAB. The "scent of plumeria flowers" for yarn became the first registered olfactory trademark in America and a world-famous precedent.

Crayola was following a path trodden by Play-Doh manufacturers, who were able to register a "scent of a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough" as an olfactory trademark for another popular children's product - solidifying plasticine.

❌ A number of countries, including India and Brazil, deny the possibility of trademarking an odor. They are following art. 2(1) (a) Trademark Law Treaty (TLT), which states that this Treaty does not apply to olfactory trademarks. The TRIPS Agreement in Article 15 allows countries to include in their trademark regulation a mandatory requirement that the sign must be visually perceptible.

?? In 2013, China excluded the aforementioned requirement from the Trademark Law of the PRC, Yet, despite this change, the registration of olfactory trademarks poses a persistent challenge in China. The National Intellectual Property Administration (CNIPA) refuses due to the absence of direct permission in the Law.

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The Shoe Surgeon Flew Too Close to the Sun: Nike Files a Lawsuit against Famous Customizer

Dominic Ciambrone, a.k.a. The Shoe Surgeon, started his career around 2006 as a humble yet talented customizer. Since then, a tiny workshop in New York has grown into a global empire specializing in creation and deconstruction of Nike sneakers.

Ciambrone's skills have earned him recognition from some of the biggest names in music (Justin Bieber, DJ Khaled, Drake), who have all commissioned him to create custom sneakers. Nike itself has also collaborated with Ciambrone on several occasions, including the creation of a pair of Air Jordan sneakers to commemorate the moment LeBron James became the NBA’s all-time leading scorer.

However, the success of The Shoe Surgeon's business has not been without controversy. Recently, Nike has filed a lawsuit against Ciambrone, alleging that he has been using their intellectual property without permission.

The growing popularity allowed The Shoe Surgeon to start making Nike shoes from scratch, selling DIY kits and online guides on the matter. In 2019, the first classes in the SRGN Academy were held. Since then, a hefty number of professional copycats have graduated from its walls, continuing to flood the market with unauthorized "‎Nike"‎ products.

Contrary to popular belief, the lawsuit doesn’t mark the beginning of a war between Nike and its customization community. Nike has emphasized multiple times that the dispute is not with those who sell their labor customizing ready-made Nike sneakers. However, turning these activities into teaching people how to create counterfeit goods is a different matter entirely.
The lawsuit includes several allegations.

▫️ Trademark infringement
Nike holds a rich portfolio of trademarks and dress marks, including the iconic "swoosh" logo, the designs of Air Jordans, and Nike Air Force 1. By including these elements in his own designs, The Shoe Surgeon promotes confusion, as many customers associate unauthorized sneakers with Nike.
▫️ Counterfeit
This claim concerns the fact that Ciambrone has long stepped out of the framework of traditional customizing. Creating sneakers from scratch and selling courses on how to sew a pair of Air Force 1’s constitutes counterfeiting of the Nike goods.
▫️ Dilution and Unfair Competition
As a result of Nike’s extensive promotion campaigns along with billions of dollars in sales, consumers have come to associate the aforementioned trademarks exclusively with Nike. The Shoe Surgeon’s use of Nike’s trademarks and trade dress is without any permission, license, or other authorization from Nike. Ciambrone’s actions cause confusion as to the source of goods and services.

Nike is committed to ensuring that consumers are not deceived by buying products that are not authentic Nike goods, and to protecting its intellectual property. We eagerly await updates on the case and will continue to monitor it closely.

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​​***☂️*** Too Many Shades of Purple Last week, Glaxo Group, part of GlaxoSmithKline group attempted to obtain a monopoly over the purple colour in the court of the European Union. However, the court rejected the demand. Since 2015, the company has sought to…

The EU Artificial Intelligence Act entered into force!

The enacted Artificial Intelligence Act is highly important as it aims to establish a uniform legal framework for the development, placement on the market, putting into service and use of AI systems. The majority of rules set out in the Act are primarily intended for providers (developers) of high-risk AI systems. The approaches that are described in the Act can be adopted and implemented internationally due to their comprehensiveness.

What regulation does the Act contain?

First and foremost, the Act classifies AI according to its risk:

▫️unacceptable AI practices – such as social scoring of natural persons is prohibited as it can lead to discriminatory outcomes or biometric categorization systems that are based on natural persons’ biometric data;

▫️high-risk AI systems – such as those that can have a negative impact on the fundamental rights;

▫️limited risk AI systems – for example, deployers of an AI system that generates content constituting a deep fake shall disclose that the content has been artificially generated;

▫️general-purpose AI – for instance, ChatGPT;

▫️minimal risk – not regulated by the Act.

An essential part of the Act is devoted to high-risk AI systems. Only some of the requirements listed below apply to other AI systems.

So, what should providers of high-risk AI systems do?

Among other things, they must:

▪️establish a risk management system that would work throughout the entire lifecycle of the high-risk AI system;

▪️monitor the quality of training, validation and testing data sets – they shall be relevant, sufficiently representative, etc.;

▪️prepare (and update) the technical documentation before the high-risk AI system is placed on the market or put into service;

▪️technically allow the automatic recording of events (logs) over the lifetime of the system;

▪️ensure that the operation of the high-risk AI system is sufficiently transparent;

▪️provide human oversight of the high-risk AI system;

▪️design and develop the high-risk AI system in such a way that an appropriate level of accuracy, robustness, and cybersecurity, etc. is guaranteed;

▪️put in place a quality management system that ensures compliance with the Act.

This Act is extremely significant because it regulates important specific elements: highlights different models of AI systems and sets the requirements the providers must fulfill; determines certain AI applications which are unacceptable and should be banned; sets an important rule of clear labelling of deep fakes; demands that any artificially generated or manipulated content be disclosed as such; provides for establishment of some new regulatory bodies, and much more.

Here is an EU AI Act Compliance Checker where you can check whether or not your AI system is subject to regulations established in the Artificial Intelligence Act.

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BURBERRY's rivalry against copycats on the Chinese fashion market

The dispute dates back to 2021, when famous British clothes manufacturer BURBERRY sought an interim injunction against Xinboli Trading – the company, which was selling clothes branded with the trademarks No. 5735060 – «BANEBERRY» and No. 7199528 – the picture of a knight in armor riding a horse.

Upholding the claim Suzhou Intermediate people's court decided that the registration and the use of defendant’s trademarks constitutes a malicious copying of the plaintiff's trademarks No. 733385 – «BURBERRY» and No. 781602 – the picture of equestrian knight.

In addition, the defendant’s clothes were designed with the classic British check, which has been one of the key elements of BURBERRY's original goods since the company's founding in the 19th century. The defendant also used the same elements of brand identity, stating that BANEBERRY is “originated in Jermyn Street, England” and using an image significantly similar to the British royal family logo used on BURBERRY products with the warrant of Queen Elizabeth II. Based on these circumstances, the court also found the defendant’s actions to constitute unfair competition.

After more than two years of litigation, the judgment was upheld by the Jiangsu High People's Court. Besides the prohibition to sell counterfeit goods and obligation to pay the compensation, the main result of this dispute was the cancellation of the defendant's trademarks. This issue has remained controversial until the very end.

The point is that Article 41 of the Trademark Law of the People's Republic of China provides as a general rule, that the trademark registered in violation of intellectual property rights of any third party could be revoked within five years from the date of its registration. Meanwhile, the defendant's trademarks were registered in 2009 and 2011, that is outside of the five-year period. However, Article 13 additionally provides that the five-year period does not apply if the violation was committed against a well-known trademark.

After analyzing BURBERRY's sales volume, marketing activities, duration and geographical scope of business in China from more than 5,000 pages of evidence, the court concluded that the company's trademarks had been well-known at the time when the Xinboli Trading filed its trademark applications.

Apart from that, the court also applied dilution doctrine (Article 45), which provides the possibility of cancellation of a trademark that is used on crudely manufactured commodities that are passed off as being of high quality, misleading the consumers.

Finally, it should be noted that this case is not the first example of successful counteraction by international brands against copycats in the fashion industry in China. For instance, in 2018 Italian menswear brand Ermenegildo Zegna won a five-year dispute against a Chinese company that sold clothes under the consonant name Yves Zegnoa.

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​Just Air From Paris

“I was looking for a gift for my friend, who already owned everything money can buy, so I brought him a vial of Parisian air.”

Such standard pharmacy ampoule filled with air in Paris city center near Vaugirard metro station by Marcel Duchamp in 1919 became a central art object in the modern art collection of his friend Walter Arensberg.

This Parisian ampoule looks like a symbolic epitome of Duchamp’s memories, reflections and feelings, when he takes a piece of his surrounding reality where he is happy to share it with his friend far away to try to let him feel the same.

It is something similar to with shells and pebbles children like to collect on the sea shore just before their vacation is over to take a piece of already past summer to their homes.

Later in 1964 Duchamp ordered his friend to recreate his masterpiece and to fill a similar ampoule with Parisian air at the same location. Recently in was sold at Christie’s for 845 kUSD.

However, what is actually protected by effective intellectual property and art law here?

Almost nothing.

Vial itself was not made by Duchamp. As he said it was standard and was taken from nearby pharmacy.

The air inside the vial was typical Parisian air without any specifics that may be legally protected.

It is likely that dozens of such vials with Parisian air inside existed long before Duchamp.

The only creative element of the artwork was a Duchamp's idea "elevate" the standard vial filled with air to the status of his gift by attaching his memories and reflections to it.

At the same time, as we all know, the modern law does not provide protection to such "elevation" and attachment.

As a result, today anyone can produce and sell the "canned air" with memories and reflections presumably connected with the specific location on Earth, commercially exploiting creativity of Marcel Duchamp without paying any direct recognition to his art legacy.

This also once again underlines the fact that the modern art law is partly outdated since it does not recognize the new approaches in creative art that appeared almost a century ago.

Join the Manifesto to make the modern art law up-to-date!

Marcel Duchamp. Air De Paris. 1919/1964. 14,5 x 8,5 x 8,5 cm More:☂️ Join the manifesto!
?‍? Hemingway’s Moveable Farm
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? How did ABBA conquer Eurovision with "Waterloo"?

In 1974 ABBA utilized all of their creativity to achieve world fame and win the Eurovision Song Contest!

But the win wasn't easy. Not only did they compose the magnificent sounds of the song "Waterloo", but also its name led to some intricacies.

ABBA's victory on the Eurovision stage Waterloo helped shape the characters of its members. Even almost 20 years after their successful Eurovision win, Björn and Benny were ready to defend their rights in Swedish courts.

From this episode, you will learn:
▫️ What allowed ABBA to stand out from all the others?
▫️ What role did journalists play in ABBA's success?
▫️ What paths led to ABBA's musical trajectory?
▫️ How did "Kristina from Duvemåla" become a stumbling block for authorship among ABBA members?

Watch the video until the end to uncover ABBA's Eurovision secrets!

Link: https://youtu.be/2kc_2ml3N18

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IP-ABBA — Eurovision & Disputes

#documentary #ABBA #law ***🏅*** How did ABBA conquer Eurovision with "Waterloo"? In 1974, ABBA utilized all of their creativity to achieve world fame and win the Eurovision Song Contest! But the win wasn't easy. Not only did they compose the magnificent sounds…

​Hemingway’s Moveable Farm

“If you are lucky enough to have lived in Paris as a young man, then wherever you go for the rest of your life, it stays with you, for Paris is a moveable feast”.

It was true for Ernest Hemingway who lived in the City of Lights with his first wife Hadley in 1920s.
Paris stayed with him for the rest of his life... same as the Farm, a huge oil painting of Juan Miro.

Bought by Hemingway in Paris The Farm accompanied him during all his life. It had been in his Cuban Finca Vigia and it was then evacuated to US on the last plane after Fidel Castro communist uprising. Until his last breath the painting was in the writer's heart converting into Hemingway’s Moveable Farm.

“Hem, you should have The Farm.  I do not love anything as much as you care for that picture and you ought to have it.” - once noted Evan Shipman, the writer's friend in Paris.
Hem bought it and said: “I would not trade it for any picture in the world”.

“In the open taxi, the wind caught the big canvas as though it were a sail and we made the taxi driver crawl along.  At home we hung it and everyone looked at it and was very happy”.
When Miró visited Hemingway and looked onto his creation in the writer's house he smiled: “I am very content that you have The Farm”.

The Farm and its creation are very connected with Juan Miro's young memories and dreams: it is "a summary of my entire life in the countryside, summary of one period of my work, but also the point of departure for what was to follow"

However, the further destiny of the painting is also very connected with Ernest Hemingway, who has also embodied his own fame and life inside it by mere possession of the painting and quoting it in his own memories and publications.

Modern law protects only the results of the author's intellectual activity, but is completely silent to recognize or protect any immaterial contribution of any third party, who has significantly increased popularity and value of such painting solely by the fact of their ownership or by dedication of their thoughts, diaries, poems or memories to such art objects. Let’s name it by “their influence contribution”. As it was made by Hemingway to the Farm.

At the same time in the modern world such contribution plays important role for art consumers as well as for the whole art market. So, now it is time to consider its new legal status.

Juan Miro. The Farm. 1921-1922. 123.8 cm x 141.3 cm x 3.3 cm.
National Gallery of Art. Washington D.C., USA

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