With Valentine’s Day fast approaching, thoughts typically turn to gifts, tipples and declarations of undying love. Instead, we look at some of the not-so-romantic IP issues that have arisen in recent months.
Aldi was given hope (albeit more Christmas-related than Valentine’s) by the Court of Justice of the European Union (CJEU) in December, when the court held that its product could be sold under the name ‘Champagner Sorbet’, if it had an essential characteristic, namely a taste primarily attributable to Champagne.
The sorbet contained 12% Champagne and received an objection from the association of champagne producers, Comité Interprofessionnel du Vin de Champagne (CVIC), which brought proceedings in Germany. The matter has now been referred back to the Bundesgerichsthof for decision.
Design rights for the big day
In another December case, this time at the UK’s Intellectual Property Enterprise Court (IPEC), the court agreed that unregistered UK design rights in two wedding dress designs had been infringed. The claimant, Thelma Madine, who garnered her reputation from appearances on the TV programme My Big Fat Gypsy Wedding, made the claims against two defendants (both former employees) who had created a dress and a figurine copying her earlier designs.
The court found in favour of Ms Madine in respect of the first defendant, Leanne Phillips, finding the infringing dress had been made substantially to the design and replicating the majority of its features. Leanne was also an employee at the time the unregistered design was created. However, there was no infringement found in respect of the second defendant, Leanne’s mother, Pauline Phillips, as there was unclear evidence that Pauline was jointly liable for making the infringing dress.
Ooh, honey honey
New Zealand-based Unique Mānuka Factor Honey Association (UMFHA) has had a UK certification mark application for the term ‘Mānuka honey’ accepted. However, it now faces challenges from the Australian Mānuka Honey Association (AMHA) for excluding Australian honey manufacturers. UMFHA maintains that the acceptance of the UK certification marks confirms that the term ‘Mānuka honey’ refers to a single geographical source that acts as a badge of origin, New Zealand, but the AMHA argues that Mānuka honey has also been produced naturally in Australia since the 1800s.
And, finally, from broken hearts to Broken Hardys
Wrestlers Matt and Jeff Hardy (known as ‘The Hardy Boyz’) have had a long career working with a number of professional wrestling companies. In 2016, they decided to leave TNA/Impact Wrestling to join WWE. As part of the move, they assumed they would also take the rights to their ‘Broken’ gimmick with them. They had developed, funded and filmed their ‘Broken’ videos independently. However, Impact Wrestling claimed ownership, preventing the Hardys from using the material and the gimmick.
Much of the dispute was played out on social media, with Matt’s wife (Reby Hardy) posting regular updates and rants through her Twitter account. The matter has now been resolved following numerous months of negotiations, and Impact Wrestling has assigned the rights over to the Hardys.
WWE, the Hardys’ new employer, includes numerous clauses in the wrestlers’ contracts that entitles WWE to the rights to their ring name, likeness, personality, character, caricatures, costumes, gestures and even legal names. That said, it has turned over the US trademark applications for ‘Broken’ to the Hardys following Impact Wrestling’s decision at the end of 2017. However, it would appear that Matt Hardy is now reimagined in the WWE with a ‘Woken’ gimmick instead.
The case is a good reminder to always take note of who owns IP rights created during the course of employment. As a general rule, employers will own the IP created by employees in the course of their employment unless the contract states otherwise, so it is always worth checking the fine print.