Intellectual Property Law Internet Law IT Law Computer Law

The Scottish Government is to spend £10,000 on adverts on the virtual billboards within Xbox 360 games.

More details available in the article at www.news.bbc.co.uk website.

McDonald’s will not be allowed to “monopolize” the Mc-prefix. The Provincial Administrative Court in Warsaw rejected McDonald’s Corporation complaint against the Polish Patent Office’s decision and ruled that a Singapore company was allowed to register MacCoffee mark for coffe products (Act sign. VI SA/Wa 1100/07).

This judgment should make all trade mark practitioners aware of differences between legal systems. Especially when this Polish case is compared to holding in the case Quality Inns Int’l v McDonald’s Corp., 695 F. Supp. 198 (D. Md. 1988). The Court ruled that Quality International’s use of the name “McSleep” infringed McDonald’s family of marks that are characterized by the use of the prefix “Mc” combined with a generic word.

IX. GENERIC DEFENSE

Both Mr. Hazard, Quality International’s CEO, and Mr. Mosser, its vice president in charge of franchising, urged at trial that “Mc” has become a generic prefix meaning thrifty, consistent, and perhaps convenient. They urge that the notion of thriftiness comes from the association with the Scots and the perception that the Scots are thrifty. The Court was directed to the writings of H.L. Mencken, the famous Baltimore journalist and writer, who said:

Nearly all the English words and phrases based on Scotch embody references to the traditional penuriousness of the Scots, for example Scotch coffee, hot water flavored with burnt biscuit; to play the Scotch organ, to put money in a cash register; Scotch pint, a two-quart bottle; Scotch sixpence, a threepence; and the Scotchman’s cinema, Piccadilly Circus, because it offers many free attractions.

The American Language by H.L. Mencken (4th Ed. Abridged with Annotations and Material by Raven I. [appropriately] McDavid, Jr.), at pages 388-89.

Both Mr. Hazard and Mr. Mosser acknowledge that the aspect of “Mc” that includes consistency and convenience derives from McDonald’s and its extensive promotional efforts. They urge, however, that any such association with McDonald’s is now lost to the public domain by common usage.

In support of the contention that “Mc” as a prefix has derived a singular meaning and become part of the language, Dr. Roger W. Shuy, a linguist from Georgetown University, reviewed hundreds of journalistic uses of the prefix “Mc” for purposes of deriving its meaning and to evidence it common usage. Several examples will give a sampling of the broad range of his findings.

The term “McFood” has been used as follows: “It’s a push-button, do-it-yourself, convenience-oriented world. . . . Why cook when we can zap a Lean Cuisine in the micro, or order McFood from a drive-in McSpeaker.” Similarly, the word McLunch has been used for what kids are eating in school.

In the area of clothes, McFashion has been used in connection with smaller, specialized express stores for kids, imitating the concept of a fast food outlet.

McMedicine has been used to refer to prompt, inexpensive medical care centers, and McSurgery becomes surgery without overnight hospital stays.

McLaw has been used to describe the legal franchise phenomenon, suggesting that legal advice is dispensed through drive-in windows. Describing franchising in other areas have been McFuneral for funeral operations; McLube or McOil Change for the fast, little drive-in shops offering ten-minute oil changes; and McMiz for franchising of the Broadway musical “Les Miserables.” Even the franchising of local post office branches has been suggested to become McMail, and franchised tax preparation as McTax.

In the news and media area, USA Today has been characterized as McPaper, “fast news for the fast-food generation.” There was even a book called The Making of McPaper. The distillation of books or books without substance has been referred to as McBook, and similar characterizations have been made about digested news stories, McNews.

Even culture that has been subjected to mass marketing has been characterized with the prefix “Mc.” The proliferation of low-cost mass-produced art is McArt. One article even referred to McMozart.

Movies that are analogized to fast food which satisfy the appetite and taste good have been called McMovies or McCinemas. Similarly, there is McTelevision, McTelecast, and McVideo.

No subject seems to have been excluded. In connection with religion there has been a reference to McGod: “It was a difficult year for the McGod family network. [Jimmy Baker, Jimmy Swaggart, and Jerry Falwell] fought a major turf battle over control of the PTL McTelevangelism.”

One article perhaps summarized it all, “This is the era of instant gratification, of poptops, quick wash, fast fix, frozen foods, McEverything.”

A news report placed into evidence referred to the trial before this Court as taking place in the McCourt, which, of course, would make the judge the McJudge. While the Court understood that association with the Courthouse in Baltimore, it could not come to grips with the suggestion that the trial was before a McJudge. The Court could find few, if any, of the attributes of “Mc” used by McDonald’s or by the journalists otherwise to fit. Perhaps this McPinion will fulfill that prophecy.

After reviewing these articles and numerous others, Dr. Shuy reviewed the context of the “Mc” word and derived a list of 27 definitions for the prefix “Mc”: highly advertised; franchise; easy access; inexpensive; high volume; lacks prestige, comfort, cost; everyday; prepackaged; specialty chain; quick; convenient; reduces choices; self-service; mass merchandising; standardized; state of the art marketing; low brow; assembly line precision; uniform; market dominance formula; handy location; positive attitude; simple; comfortable; honest; looks okay; and working man. He reduced these to four terms which he characterizes as the definition of “Mc,” that is, “basic, convenient, inexpensive, and standardized.”

McDonald’s retained an outside firm to do its own internal marketing research into the public perception of the meaning of “Mc” and the conclusions reached were similar to those reached by Dr. Shuy. McDonald’s list, which was much shorter, distilled the following definitions: (1) “reliable at a good price,” (2) “prepackaged, consistent, fast, and easy” (3) “a prefix McDonald’s adds to everything it does,” and (4) “processed, simplified, has the punch taken out of it.”

Dr. David W. Lightfoot, a linguist from the University of Maryland, testified at trial on behalf of McDonald’s. He took no issue with the meanings derived by Dr. Shuy and by McDonald’s own internal survey. However, he disputed vigorously any notion that “Mc” is a generic word. He pointed out that “Mc” does not have a single easy identifiable meaning. For instance, of the 27 or so definitions derived by Dr. Shuy from the journalistic uses, many were not incorporated into Dr. Shuy’s condensed definition. Dr. Lightfoot concluded that all the meanings derived by Dr. Shuy, by McDonald’s and by him were essentially descriptive of McDonald’s Corporation and the reputation it has earned over the years. He concluded that whether or not there was a specific reference to McDonald’s Corporation in each article, in every case the allusion was to McDonald’s and its family of marks in a manner that was intended to be cute and playful.

The Court concludes that indeed the uses in the press of “Mc” plus a generic word are coined and novel to each article for the playful use by the author. In each case the allusion, whether express or implied, was to McDonald’s, sometimes flattering and sometimes pejorative. There was no single independent meaning of “Mc” understood in the language and its uses have been created to convey any one of several attributes that the author makes to McDonald’s.

This is not analogous to a circumstance where a product is referred to so frequently by brand name that even competitive brands are called by the one name and the brand identity is lost. On the contrary, the attribution of source to McDonald’s in the use of “Mc” is strong and persists. The Court notes that while most of the articles used by Dr. Shuy did not contain express allusions to McDonald’s, a very similar group of articles that he did not use in his analysis, but which conveyed the same meanings, made express allusions to McDonald’s. The Court therefore rejects any contention that McDonald’s has lost its right to enforce its marks because “Mc” has become a prefix with a single meaning that has become part of the English language and beyond McDonald’s control.

Just www.steinbrener-dempf.com website.

Those advertising movies presented below although they apply to trademarks they are also a great example that ideas should not be copyright protected or proprietarized in any way. Cadbury’s ad was first. A propos - I think those are delicious sweets. And it is not a hidden marketing or advertising here. It’s just a small opinion of an excessive consument.

Then came the Wonderbra’s ad. I even like those ads, errr I mean this ad, this AD!

And here is a very interesting example of “comparative advertising”. Enjoy.

Would you like to know why am I into IP law issues? The answer is really brief and short. Because I will not have the opportunity to meet with so much creativity and originality in other fields of law. I have always a chance to talk with very interesting clients and sometimes there is also a lot of great humor involved. The movie clip I present below only strengthen me in this feeling.

As a bonus and for your comparision here is also a clip with original Danio’s advertising.

Couple months ago the world saw Mikhail Gorbachev promoting Louis Vuitton products.
(…)
Outwardly, you will not see anything strange on Annie Leibovitz’s photo. Gorbachev is sitting at the rear seat of a car and Louis Vuitton bag lies near him filled in full. There is a Russian newspaper on the top. If you look close, very close, you’ll see what’s on its cover…
(…)
The title written in Cyrillic alphabet says “The Murder of Litvinenko: They Wanted to Give Up the Suspect for $7,000″.

More details and some pictures are available in the article at www.gazeta.pl website.

Innovators Network has invited me to chair a workshop focusing on SMEs from the IT sector. I’ll teach them how to define intellectual assets and protect it, as well as, to raise capital, develop partnerships, and create new streams of revenue. This workshop is titled “Discover a New Source of Income for Your Company through Usage of Intellectual Property. Turning Your Innovation into a Successful Business”. It will take place on December 6, 2007, in beautiful Kraków. If you are around during this time and you’d like to meet then let me know.

I know that I should not compare actions based on “selling” ideas of freedom to be allowed to conduct a business (as it happens in some countries) with using ideas of freedom in marketing actions to sell some business. Just check very original poster presented at www.adsoftheworld.com website which is also a good illustration of marketing campaign done for Brazilian magazine called Veja.

I must admit that I was really lazy and I didn’t want to spend a few dozen of seconds to write about one second flick of McDonald’s trademark on Food Network’s channel. Such activity is well-known as subliminal marketing. So, I was really happy when I realized that my dear friend Marcin Sochacki wrote a very detailed post about as usually. I fuly recommend you to read his findings.

This is very funny ad and its story is described by Marcin Sochacki so I’ll just cite it. Big up.

Many people wrote about the new Vision Express commercial in Poland, but I haven’t seen it recorded anywhere yet. I asked Hubert “Depesz” Lubaczewski to share his TV recording and I’m posting it below.

The ad gained a lot of popularity among Polish Internet users because of a peculiar choice of letters used on optician’s Snellen chart. They used some acronyms, which are very popular in chat rooms and other situations: OMG, WTF, STFU, PWN3D, UR A NOOB, LMAO, ROTF, KTHXBYE, :P. Hats off to the media agency which invented that! The idea most likely comes from the giftedtwisted design available at cafepress.com.

Here is the mentioned advertising movie.

Very interesting history and a website. Check www.conelrad.com.

I collected links to such movies for some time. These movies are characterized by one leitmotiv - the criticism of marketing and advertising activities in different forms. I invite you for a short show.

And for dessert let me put some ad here. Actually I should place it during the presentation above so it would achive better effectiveness. ;)

And its excellent parody.

That was a good action. Just read the post at www.adweek.blogs.com website.

The so-called viral marketing, word-of-mouth marketing or as other people prefer to call it - guerrilla marketing, found its place in the net. The issue of such shady business was taken into consideration by the Federal Trade Commission. More details about this case are discussed in the article at www.washingtonpost.com website. Not so long ago, this kind of promotion had a bad impact on Sony’s image. This problem concerned the blog titled alliwantforxmasisapsp.com, which was operated by a company hired by Sony Corp. You may read about that in articles at www.gwn.com and www.younewb.com websites. However there is also an article about a reaction against PSP graffiti promotion (allegedly sponsored by Sony) available at www.gwn.com website.
You may also check www.ifilm.com website with big collection of 2006 best “viral” movies. Not all of them concern marketing and promotion.