Posts on this blog represent my opinion. It may be my considered opinion on the basis of my formal study of law and technology. But it is not legal advice. It must not be treated as, or acted upon as, legal advice and no liability is accepted for doing so.

Monday, 26 October 2009

Meddle Not in the Affairs of Wizards

As you might notice from the updated profile I am no longer swelling the ranks of the unemployed. (In fact, since for various reasons I wouldn't have qualified for any benefits I never signed on, so strictly speaking never did, but I'm allowed the odd metaphor now and again.) I am now an RA in QMUL's Law Department, working at the Centre for Commercial Law Studies on a project looking at the legal issues relating to cloud computing.

More on that some other time, perhaps, but for now I see that IP is back in the news again with the story of 'Ms Marmite Lover', who is being threatened by Warner Bros for planning to put on a Harry Potter themed dinner. For once we have more than newspaper stories (written, with the best will in the world, by someone who probably doesn't know much about trade marks or copyright*) as Ms M-L has kindly reproduced the cease-and-desist letter in question.

[*I'm not suggesting reporters or staff writers are legally ignorant. However, most are probably hottest on subjects such as defamation and privacy.]

I'm afraid I can see W-B's point. It looks like this is not quite a domestic dinner party, but rather an openly ticketed event, so Ms M-L is arguably using the phrase 'Harry Potter' - a trade mark of Warner Bros - in the course of trade. Now, she understandably claims that from her point of view she is using it purely as a sign of being a fan rather than a suggestion that her food is somehow from, or endorsed by, either Warner Bros or J K Rowling herself. Unfortunately this is a buoy we've all sailed round before during the voyage of Arsenal v Reed, with its ECJ ruling, endorsed by the Court of Appeal, that 'badges of affiliation' can and do infringe trade marks. Having said that, Ms M-L's use seems rather de minimis and there is a risk that Warner Bros' action may be seen as yet another example of Big Business using IP rights to squash what most people would see as harmless fun. As a supporter of and believer in IP I think it needs all the good publicity it can get, but these days it only ever seems to get the other sort no matter how hard the IPO tries to rope in the services of Wallace and Gromit.


Dr Plokta said...

The point I often see made is that trademark holders can lose their trademarks if they turn a blind eye to unauthorised use of them. What I've never understood is why they can't simply send letters authorising such small-scale use of them, rather than cease-and-desist letters, which would presumably cover them just as well for preventing actual commercial infringement while generating less bad press.

Johan A said...

Good point by Dr. Plokta. I'd be interested in a comment from the Major!

Charlie Stross said...

Dr Plotka's point is a good one -- IIRC Linden Labs (the folks who do Second Life) did exactly what he suggested to one satire website that had knocked off large elements of their design/look-and-feel -- they sent the usual legal letter explicitly authorising the use of their material for satirical/humour purposes.

Got them lots of goodwill from the fan community and elsewhere, without risking brand dilution or loss of business.

Simon Bradshaw said...

The idea that if you don't ruthlessly police every use of you trade mark then you'll lose it is rather an old wive's tale of IP. Yes, you can lose a trade mark on grounds of acquiesence to infringing use, but it is rare and in practice requires prolonged indifference to substaintial unauthorised use. So I don't think Warner Bros could seriously claim that Ms L-M was putting their trade marks at risk.

As to authorising small-scale use, well yes, that's what I'd do. But I'm not Warner Bros. One point that has occured to me is that there are plenty of Harry Potter conventions, so I've asked some friends who have been involved in such things whether these events seek or receive permission to use 'Harry Potter' and other marks.