Trademark infringement in business law

Trademark Infringement

Trademark and patent rights are important in the international perspective and have become the bone of contention in world trade matters. One of the most important discussion and formulation of policies of the Doha Round of the World Trade Organization that was held in 2002 started with the discussion of patents and trademarks. The para 17 of the release of the directors show that the WTO is concerned and is working for the "implementation and interpretation of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)." (WTO, 2002) the council further noted that the work begun by the Council for Trade-Related Aspects of Intellectual Property Rights -- TRIPS brought in the 'notification and registration of geographical indications' for many products. (WTO, 2002)

The geographical and color question:

The geographical rarity and the patent issued to a geographical product that has unique identity of its own are reasonable. But is it the same in very case where concepts like color are involved? In PMS 1837, otherwise known as Tiffany Blue case the concept of strong brands being associated with a particular color has been accepted. Coca-cola has the 'red in the soda category'. BP Oil Company took green. Thus yellow is associated with John Hertz' Yellow Cab and Yellow Truck Company. (Morton, 2011)

In the leading case of Christian Louboutin (Louboutin), famous for its signature red-soled shoes the question is if the consumer was confused by YSL's use of the distinctive red sole at the time of interest in its shoes. (Elliott, 2012) in the Blue Frozen Desserts (Ambrit v. Kraft Ambrit's request for protection of blue, was turned down as it could become a monopoly. In the case of the Red Bucket case, DAP's packaging with red color was protected. In the case of Life Savers v. Curtiss Candy Co, the court denied 'Life Saver' any right on their striped colors, "citing that no trademark infringement or unfair competition had been established. They found that it was a 'general practice of the trade' for hard candy manufacturers." (Morton, 2011) Likewise in Manz'sche Verlags v. Linde Verlag in Austria stated that a color previously established to identify the goods of another party violated Section 9 of the Unfair Competition Act if used by a competitor. (Morton, 2011)

The question is about the actual trade barriers that could be related with some corporate owning colors. The blanket ban on rivals using their color may well be extended to complementary goods, and start a color war. Is the color so important is a question that has not been fully answered and it is also difficult to prove. There may be contentions in certain industries that deal with fashion, textile and so on where the color is important. Shoes for instance have unique attractions. What happens if the 'red' car of Chevrolet bans all car manufacturers from using the red color? This begets the question if the color alone identified the car. The consumer may not be that naive and giving the monopoly on color many not be such a bright idea.

The problem with color identity is that in various industries, customer tags a product with a color. That is why the international agreement on 'Trade-Related Aspects of Intellectual Property Rights', including 'Trade in Counterfeit Goods of the TRIPS Agreement' wants to include the aspect of color as discussed earlier. There are some significant tests for the color to be attached to a product and this is called the functionality test. Thus there must be a specific symbolism that would be associated with the unique product, or there must be a unique design. There could be logo and text that are unique not only in font but also in color.

Confusion:

There is confusion over colors. Because customer confusion is very difficult to prove, confusion is difficult to prove. But the argument that 'consumer was confused by YSL's use of the distinctive red sole at the time of interest in its shoes raises the question whether a consumer is to become confused by the color of products that are in the demographic area and which are all equally well-known can be sustained? Confusion prevails over the issue, and it is not a settled law yet. (Bennett, 2012)