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News blog11 July 2023European Innovation Council and SMEs Executive Agency

Barbie vs Burberry - Twitter threatens to sue Meta - Apple loses in 4G essential patent battle

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Barbie-creator Mattel opposes Burberry’s trade mark application “BRBY”

Barbie has become a viral phenomenon due to the film directed by Greta Gerwig and starring Margot Robbie and Ryan Gosling that will be released in July this year. Just days before the release of the Barbie live-action film, the famous blonde doll has recently started a dispute with the British luxury brand Burberry.

The toymaker Mattel, creator of Barbie dolls, has indeed filed an opposition against a trade mark application filed by Burberry. Mattel has asked the US Trademark Office to reject British fashion house Burberry’s proposed “BRBY” trade mark, claiming it is likely to evoke confusion with the famous Barbie trade mark. In the opposition, the toymaker argues that the initials “BRBY” are very similar to the name of the Barbie doll brand in both spelling and phonetics.

Barbie is not only the world’s best-known doll, but also a registered trade mark. Last year, Burberry applied for registration of the word mark “BRBY” with the US Patent and Trademark Office for use on the brand’s apparel and accessories. The creator of Barbie has filed several applications with the Trademark Trial and Appeal Board opposing the use of the trade mark “BRBY” because, according to Mattel, the abbreviation could be read phonetically as Barbie.

The legal basis for Mattel’s claim is that the “BRBY” trade mark applied for is highly similar to the Barbie trade mark in appearance, sound, and commercial impression. Mattel claims that the marks are phonetically identical due to the lack of vowels guiding the pronunciation: “because Applicant’s mark lacks any vowels to guide pronunciation, it would likely be read in a manner phonetically identical to Barbie” and argued that consumers would view “BRBY” as a subset or expansion of the Barbie trade mark.

US Courts have found that similarity in sound is one factor for determining whether trade marks are similar, but would the average consumer make that connection? − asked Josh Gerben, a recognised trade mark attorney.

Beyond the similarities shared by the respective companies’ marks themselves, Mattel maintains that the goods listed in Burberry’s trade mark application for registration (namely, those in Classes 18 “leather products” and 25 “clothing, footwear, headwear”) “directly overlap” with many of the goods/services that it markets under the Barbie trade mark. For instance, Mattel claims that it has used and uses the Barbie trade mark in connection with handbags, luggage, a broad range of clothing, footwear and headwear −all of which are also proposed under the Burberry mark. Mattel also argues that not only Burberry’s goods, but also customers and marketing channels so closely overlap with the Barbie ones, that Burberry “is highly likely to cause confusion or mistake, or to deceive consumers” about the source/nature of any BRBY goods. Therefore, the BRBY mark for Burberry clothing, bags and other products would mislead consumers into thinking they were associated with Mattel’s Barbie dolls and related merchandising, argues Mattel.

Furthermore, Mattel affirms that Burberry “has intentionally chosen the BRBY mark in order to create an association in the minds of those in the marketplace with the Barbie mark”. Mattel considers that with this association Burberry could take advantage of Barbie’s reputation, so they want to prevent Burberry from launching products under this new name.

Setting the stage in its June 26 opposition, Mattel states that its Barbie trade mark is “one of the most recognisable brands in the world” and that it will be harmed if the US Trademark Office green-lights the British fashion brand’s application for registration.

 

Twitter accuses Meta of using its trade secrets for its new app Threads

Twitter CEO Elon Musk is threatening to sue tech giant Meta claiming the company has violated Twitter’s intellectual property rights, in particular, using Twitter’s trade secrets for its new app.

Threads is the new social network launched by Meta, a text-based conversation app that aims to compete against Twitter. The launch of Threads comes at a time of discontent among Twitter users after Elon Musk announced a cap on the number of tweets users can read per day.

Twitter's lawyer has sent a letter to Meta CEO Mark Zuckerberg where the company expresses its “serious concerns that Meta Platforms has engaged in systematic, wilful and unlawful misappropriation of Twitter’s trade secrets and other intellectual property”. Twitter claims that Meta hired former Twitter employees who became involved in the development of Threads while they still had access to "Twitter trade secrets and other confidential information".

Elon Musk has expressed his opinion on Twitter, saying that "competition is fine, but cheating is not". A Meta spokesperson has commented on the issue on Threads, stating that no one on the Threads team is a former Twitter employee.

Twitter's accusation is not limited to Meta's alleged use of Twitter trade secrets, but also alleges that Meta has been web scraping Twitter to extract data that could help improve Threads. According to Twitter, Meta was “prohibited” from scraping data from any Twitter service. Indeed, limiting the number of tweets users can reed per day was a measure in response to companies using Twitter to train their AI models.

 

Apple loses appeal in 4G patent dispute with Optis

The Court of Appeal in London has dismissed the appeal brought by the tech giant against Optis, a US company that holds standard-essential patents for 4G.

This ruling comes after a long-running legal dispute between Apple and Optis that began in 2019, when Optis filed a lawsuit against Apple alleging it had infringed telecommunications patents related to 4G technology used in iPhones and iPads.

In March 2022, the London High Court ruled that Apple was infringing two essential patents. In May, Apple appealed this decision claiming that these patents were not necessary for 4G standards and that they had not infringed them.

Last Tuesday 4 July, the London Court of Appeal dismissed the appeal lodged by Apple, ending the intellectual property dispute in favour of Optis. Furthermore, the UK Supreme Court agreed in June to consider whether Optis was entitled to an “immediate injunction” against Apple once the courts have found the patents valid.

 

 

Details

Publication date
11 July 2023
Author
European Innovation Council and SMEs Executive Agency