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News article | 18 May 2021 | Executive Agency for Small and Medium-sized Enterprises

Disaster Girl earning money through NFT and Hasbro losing the Monopoly EUTM

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Good morning everyone. I hope you are all enjoying the warmer and sunny days. For today’s IP news:

 

Disaster Girl claims her IP and manages to earn money through NFT

 

Zoe Roth is the little girl (now full-grown adult) that many of us remember from the meme where a house was on fire in the background, and in the foreground, you could see this little girl with a devilish eye (could she be the one who burnt the house, many wondered at the time). Zoe became famous because of this photograph that her dad took when she was only 4. After years of being used as a meme, Zoe has now figured out a way of making profits from the original photo by selling it as an NFT. 

 

I am by no means an expert on the subject, but an NFT is a non-fungible token (unique, as opposed to Bitcoins) that uses the same blockchain technology as cryptocurrency. That way, the original photo is encrypted and tokened as the one and only original, allowing it to be identified and valued. It is the digital version of a Picasso if you want. 

 

In February of this year, Zoe was offered to sell her photo as an NFT. She agreed to it, regaining some control over this original photograph and making a profit from it. The image was bought for, approximately, 470,000 euros or 180 Ether. Zoey and her team also codified the NFT to make sure that with each resale, she gets 10% of the price. 

 

Interesting. One might wonder if NFTs are durable and could change the way in which we see art. 

 

Hasbro loses the Monopoly EUTM. 

 

Hasbro's ‘Monopoly’ EUTM was partially invalidated after the EU General Court found that its filing strategy was designed to avoid proving genuine use.

In its judgment issued on April 21st, (https://curia.europa.eu/juris/document/document.jsf?text=&docid=240162&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10685482) the Court upheld an earlier decision from the European Union Intellectual Property Office (EUIPO), which considered Hasbro to have acted in bad faith.

 

The ruling comes after a lawsuit filed by Croatian board game seller Kreativni Događaji, which sought the invalidation of the Monopoly EUTM re-registered in 2011.

 

Over the years, Hasbro filed a series of MONOPOLY wordmarks: in 1996 for classes 9, 25 and 28; in 2008 for class 41; in 2010 for class 16. Then, in April 2010, it filed another MONOPOLY trademark, covering classes 9, 16, 28 and 41 (classes that were already covered by its previous applications). 

 

What the EUIPO noticed, and the Court agreed to the observation, is that the April 2010 trademark was used as the basis for recent opposition proceedings and that in those proceedings genuine use of the mark had only been proven for board games, but not for any other goods or services. This made them question what was the commercial reasoning behind the April 2010 trademark filing. The EUIPO Board of Appeal (BoA) dismissed Hasbro's suggestion that the repeat filing "made its life easier in terms of administration", noting that if anything, repeat filings increased costs. 

 

Based on all the above, and pretty convincing testimony, the Court agreed with the BoA, concluding that Hasbro's intention "was indeed to take advantage of the EU trademark rules by artificially creating a situation where it would not have to prove genuine use of its earlier marks for the goods and services mentioned". Indeed, by claiming or opposing based on its 2010 trademark, said obligation (the obligation to use the trademark within the 5 following years of registration) was bypassed. As a result, the April 2010 filing was made in bad faith insofar as it covered goods and services already covered by the earlier marks, annulling registration for the goods and services already covered by the earlier trademark. 

 

We know all the above might sound confusing but be prepared for a post of what constitutes bad faith when it comes to trademark this month. 

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Executive Agency for Small and Medium-sized Enterprises