Professor Llewelyn before a scholarly audience, including professor Barton Beebe on the right
Professor David Llewelyn’s latest presentation did not miss to resonate with a scholarly audience. The earlier presentations IP Dragon attended included the highly relevant topic such as “Leveraging your IP” and testified an ability to clarify in a concise way, such as explaining all IP in one hour. This time professor Llewelyn spoke at the ‘Charting the New Frontiers of Intellectual Property Protection of Luxury Brands’, June 16, 2012 at HKU.
IPR is getting too complex
As the last speaker of the day professor Llewelyn gave his view unapologetically on the previous presentations which included a deluge of social theories: “Veblen? Intellectual property rights are already too complex.”
First professor Llewelyn made clear what his believes toward IPRs are: “We need IPRs, society be worse off without. But it is in the interest of everybody to have a balanced and efficient system of IP.”
Then he zoomed in on luxury goods. Going back to the basics, he posed the question why brands that make and sell yachts or cars are excluded from the definition of luxury brands. Isn’t a luxury brand in the eyes of the beholder?
Without becoming populist professor Llewelyn makes clear that there is a difference of perception between lawyers and “normal people” in what they perceive as a luxury brand. Kwanpen, for example which might be just selling products such as look-alike Birkin bags according to some lawyers, but when it is sold at the ultimate luxury places in Hong Kong such as the Landmark, IFC building and Pacific Place, with sky high rents, it is called a luxury brand by “the normal person”.
Professor Llewelyn asked whether a brand makes the luxury bar if it is considered in one country as commodity and in another as special, which happened to Feiyue, a brand from Shanghai which is more popular in France than in China. “And what happens to a brand that is not considered a luxury brand, if it is bought by Louis Vuitton?”
Another interesting question he asked was what would happen if a poacher becomes gamekeeper: referring to The Body Shop, which was a shop in natural soaps and lotions in Berkeley, California. Anita Roddick visited the place in the early Seventies and copied the list of products and concept and set The Body Shop up in the UK in 1976 and made it into a successful chain of stores, which she sold in 2006 to L’Oréal.
France superpower in world of luxury brands
Professor Llewelyn makes clear that French organizations, such as Comité Colbert and Comité Interprofessionelle du Vin de Champagne (CIVC) were successful in protecting the luxury brands of its members.
First Professor Llewelyn debunked the historic connection between champagne and bubbles: only after a request by the British to include them Perignon added them. Then he told how the people of the little Swiss village near Neuchâtel called “Champagne” could no longer use the name for the wine or bread they produced.
Then he gave an example of what an industry group such as CIVC can achieve. The use of the name “champagne” had become part of a deal between the EU and Switzerland. In exchange for Swissair to make use of stopovers in the EU, Switzerland would forbid the people of Champagne to use the name of their village as a source of origin (de Champagne). Read John Tagliabue’s NYT article about it here.
After that professor Llewelyn asked what exactly falls under the scope of counterfeiting: all infringements, parallel imports, look-alikes, knock-offs, cabbage (which is an overrun). Too much might be included in this category.
Stinky case
Professor Llewelyn is no fan of L’Oréal vs Bellure, which he calls “the sub-prime crisis of IPRs,” and bad smelling.
He also dislikes it that marks that are successful will have broader rights. For professor Llewelyn the touchstone of sanity for trademark law is a likelihood of confusion doctrine. Two cases illustrate this well: Polo vs Pacific Polo (The Polo/Lauren Co., LP v Shop In Department Store Pte Ltd. [2005] SGHC 175, read Dedar Singh Gill, Paul Teo and Yvonne Tang’s Managing IP article about it here and the Doctor’s Associates Inc v Lim Eng Wah (trading as SUBWAY NICHE) [2012] SGHC 84, which is the case of American sandwich giant Subway vs Subway Niche a Singaporean snack chain that was located in a niche of the subway, read Singapore’s IPO Victor Cheng’s speech here and a link to the case here.
Contrary to the likelihood of confusion doctrine, anti-dilution laws cannot count on his approval: “The sledgehammer that keeps falling to crack the nut.” One of the challenges with the current dilution doctrine is. He has a point, because what is famous? It’s not practical. He states: “Is it a crocodile that looks to the right (Lacoste of France founded in 1933), or to the left (Crocodile Garments of Hong Kong founded in 1952) or first to the left but now only goes by the letters CROCODILE (CROCODILE of Singapore founded in 1947).”
As an antidote for the tendency of overreaching intellectual property rights, professor Llewelyn suggested to take a look at the Statute of Monopolies of 1623, which excludes all monopolies, unless there are reasons for an exception, which might make things temporarily more simple. But pendulums swing back and forth, so it must swing back. Therefore the next question is what reasonable reasons for exceptions would be?, which would complicate matters again. But professor Llewelyn again has provoked a lot of thoughts.
David Llewelyn is Intellectual Property Law professor of King’s College London and Singapore Management University, joint author of the scholarly standard work Cornish, Llewelyn & Aplin on Intellectual Property: Patents, Copyright, Trade Marks and Allied Right, but also Invisible Gold in Asia: Creating Wealth through Intellectual Property (see IP Dragon’s Book Review here), which was able to bring the matter under the attention of the business community.
If I may I would like to say a few words, anti confusion is to prevent a free ride of heavy investment of goodwill made by a luxury brand owner and so does the anti-dilution law. It is not up to a law professor to define what is a luxury brand but the consumers of the trade mark goods. Famous Trade mark serves to make these consumers to signal to the world that they belong to an elite class (as compared to those who cannot even afford it). It becomes a sort of life syle brand more than just anti-confusion function in a free market economy (anti-dilution is to one of the measures used to aovid market failure especially in this high-end market and so does anti-confusion). L’Oréal vs Bellure decison fosters the development of luxury brands. The trade mark does have a social function to play; let alone an economic one. Every jurisdiction must define what social and economic functions (static or dynamic) the trade mark intend to serve in its market. Net IP importing country will inevitably have a different view from a Net IP exporting country. Parallel import policy provides a good illustration.