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Tuesday, 2 October 2007

News from Toytown

The IPKat is intrigued by a story in Lanard, a Hong Kong company, has lost a trade mark and trade dress infringement case brought by General Motors. Lanard has been producing toy cars that resemble General Motors’ Hummer utility vehicle.

This reminds the IPKat of the ECJ’s relatively recent Adam Opel decision, where the makers of Adam Opel cars lost a case against a toy maker making replica toy Adam Opel cars which included the trade mark. The IPKat says there are two big questions in such cases: 1. will consumers really think a car maker is also making toys, or licensing its mark for toys? 2. Do we want to give makers of ‘real world’ goods a monopoly in the secondary market for toy replicas of their goods?


Niel said...

Assuming a car manufacturer does own trade marks for cars as well as toys (as I understood Opel did) the question is still whether putting a car badge on a replica toy car or toy replica car to ensure fidelity is use of a trade mark. And if it is not (as the Opel case decided), what is the position with putting a car badge on a replica full size car, assuming in all cases there are no other rights e.g. that the car is a replica of a classic model of the brand? My feeling is that the courts would frown on the latter but I have difficulty with the conceptual difference between the two scenarios.

Luke Ueda-Sarson said...

Niel, I think a court would so decide because "common-sense" would say that Joe Public wouldn't associate a miniaturied badge on a miniaturized model as serving a trademark function, whereas they would so associate a full-sized badge on a full-sized model - if indeed, they even recognized the full-sized model (replica) AS a model.

Regards, Luke

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