Another Embarassment For French 'Three Strikes' Agency… As Someone Beats Them To Filing For Trademark
from the so-easy-to-infringe-these-days dept
Earlier this year, we noted that the French government organization put in charge of enforcing the new “three strikes” law in the country, Hadopi, had used an unauthorized font in creating its logo. The organization also got in some hot water over leaked plans for ways to monitor users. The latest, as pointed out by Glyn Moody, is that someone else beat the organization to apply for a trademark on “Hadopi.” The article seems to suggest that this guy who applied first is likely to get it, but that doesn’t make much sense to me. At least in the US, you need to actually use the trademark in commerce to be eligible for it, and it’s not clear this guy is doing anything at all with Hadopi. On top of that, there’s such a thing as common law trademarks for those who used the mark first — but, again, I’m not quite sure how that works in France. Any European trademark lawyers want to weigh in?
Either way, if the guy does get it, he’s planning on suing Hadopi. The guy did this in the first place because he’s not a fan of the three strikes law, and thinks that there should be some more discussion on it. Oh yeah, he’s also promoting his own online music service as well, so this is certainly a large publicity stunt. Still, for an organization that’s supposed to be about “protecting intellectual property,” it hasn’t shown itself to be very on the ball so far.
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Where I am (Canada) you can apply for a trademark based on a plan to use it in commerce. If you don’t use it in commerce by a certain period thereafter, your trademark is nullified.
I suspect it’s the same way in the U.S.
The intent-to-use doctrine also exists in the US.
Trademark expiration for lack of use
I believe in most European countries, due to EU regulations and international treaties transposed to national law, the trademark must be abandoned for 4 years to be nullified. So, he can get Hadopi for at least 4 years before someone can legally prove he’s not using it.
Here in Portugal, we have a famous example from a guy who filed Cristiano Ronaldo’s (the soccer player) trademark before he did (CR7 or CR9 – whatever number was on his team shirt) and got payed a bucket load when Cristiano setup a clothings line with that trademark… a veritable “trademark troll” 🙂
Re: Trademark expiration for lack of use
Miguel is right, in France and in Europe in general, you don’t need to prove your intent to use a TM for the filing.
As a consequence, the first one who come will be the first served.
The Hadopi organization can only prove that it owned other prior rights on the “Hadopi” name.
Well, if you’re able to keep the trademark as long as you use it, I bet that Hadopi Records would be a lovely name for an online music service. ~.^
Just start your own business called Hadopi Consulting. There.
I’m opening the “Hadopi Cheese & Crackers” shop. We’ll be serving free-trade coffee and piping in RIAA-free music.
I’m waiting for MLB to sue
I hope the guy gets the trademark!
As in most countries of continental tradition, you don’t even need to show intent to use to register a trademark. However, most TM laws allow a third party to file for the registration’s nullity if they can prove a legitimate interest or prior use or right of the mark. There is no statute of limitations for this action.
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There is no common law in France. They have Civil Code (or, Code Civil in French). It’s quite different. As has been covered numerous times on this blog, the French legal decisions often do not make sense to us. This is why. The Napoleonic code’s (that is where it comes from) entire legal doctrine is quite different.
On a side note, the most hilarious application of Code Civil is in Québec, Canada. So basically one Judicial system exists in Canada but in Quebec Code Civil is applied and in the rest of Canada common law is applied. Which makes searching for precedents so much more interesting.
French Trademark Law
In France, rights flow, at least initially, from registration. In the U.S. rights flow from use. Squatters have much better leverage in France and countries with similar TM systems.
It is a major conceptual and cultural difference. Likely that the registrant knew of Hadopi and that Hadopi’s prior use can be proven.
But while the French registration is in effect, it is quite powerful. A French huissier (sheriff) properly authorized will seize and destroy goods that infringe a registered mark. So before you attend a trade show in France, check what’s registered…
HADOPI organization won!
I looked into the French trademark database and the HADOPI trademark who had been registered by the guy has been rejected before the French Court of Appeal on July, 06 2010.
Therefore, this trademark has been registered by the organization in August.
I was willing to indicate the links but the database does not allow direct links but i can provide screenshots if needed.