Interesting Trademark Infringement Case in India

modafoto

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I understand Coca Cola as their name, brand and logo is being connected to water shortage (as Coca Cola is guilty of that...). The photo may be ironic, but it is also a critique of Coca Cola which is without reason here.
 

David A. Goldfarb

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Ed Sukach

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I don't think Coca Cola has a chance here, or more properly, SHOULD NOT have a chance in a court of law.

Signs, Billboards - are by their very nature devoid of any and all privacy - they are MEANT to be there for public view .., so "Invasion of Privacy" could not be an issue.

"Trademark" infringement ... I don't think there was any misuse of the Coca-Cola trademark, either .. that would necessarily mean something like mis-labeling a fraudulent product - misrepresenting its parentage for illegal gain.

I wonder if India has anything like our First Amendment - Guaranteeing Freedom of the Press .. which would certainly be applicable here.
 

Wally H

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In the US, it could be argued that the bill board is an ad for the photographer and as such the photographer would need authorization to use the trade mark for his own commercial purposes...
 

Donald Miller

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I think that Coca Cola has a basis to their position...at least on the basis of US law. The photographer is depicting (albeit subliminally and cleverly) Coca Cola as contributing to a water shortage. He did use both an image and a slogan, that are protected under law, in the depiction. The effects are damaging and if the photographer does not cease and desist then he should be subject to legal recourse.

He did not take a photograph of an existing billboard...he used an image that he had created as a basis for a billboard that he displayed.

He could have escaped the corporate response had he not shown the bottle and had he ammended his words to something like "Why not have a cola while you wait"...The message he wanted to convey would have been just as effective and Coca Cola would not have the defensible position that they now enjoy

Under the same conditions, were I the photographer here in the USA, I would not want to be defending this photographer's position in a court of law against the onslaught of their corporate might.
 

David A. Goldfarb

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I'd bet the Coca-Cola logo has appeared in a lot of editorial photography and illustration, and the company has viewed it as free advertising. You can't pick and choose, based on the message.
 

haris

Donald Miller said:
He did not take a photograph of an existing billboard...he used an image that he had created as a basis for a billboard that he displayed.
Click to expand...

I think this is most important issue here. I mean, I don't like Coca Cola and I don't use theire products (for personal reasons, they cheated one member of my familly once), but if photographer acted like that, then it is not honest and correct photographers acting.
 

Andy K

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I think this is corporate bullying, pure and simple. Have they ever issued lawsuits against the makers of T-shirts with the 'Cocaine' logo in the Coca Cola style script? But a photographer in an emerging economy is an easy target. Coca Cola will get vastly more negative publicity from this than if they had just ignored it.

They should look at the lawsuit McDonalds lost against activists in Britain recently. That action put many people off buying their product and gave McDonalds a very bad image.
 

gr82bart

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Andy K said:
I think this is corporate bullying, pure and simple.
Click to expand...
I agree. In policy, this type of intimidation is often 'outlawed' in more enlightened corporations, but I suspect an overzealous junior lawyer got wind of this and fired a letter away. I will safely bet the more senior staff had a small word with him/her. I don't think anything will come of this.

Art.
 

Roger Krueger

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In the U.S. this would almost certainly be safe as satire and social commentary. The only real requirement--that the target of the infringement is also the target of the social commentary--is easily met. This is percisely the kind of issue raised in Mattel vs. Thomas Forsythe (the Barbie artist). Mattel not only lost, they got ordered to pay $1.8 million in legal fees.

Ed: You no longer have to confuse or misrepresent parentage to infringe. Mere tarnishment has been enough for some time.

Andy K: re: "Enjoy Cocaine"--Coca-Cola did get that killed because it was commercial use--they were selling posters, t-shirts, little mirrors, etc. It is also very questionable whether it really constituted valid social commentary. It was in fact one of the earliest trademark cases that prevailed solely on tarnishment grounds, rather than dilution.

Haris: What's not "honest and correct" in taking a satirical poke at the misdeeds of a major corporation? Since when do they have the right to act badly with immunity from ridicule?

Donald: the purpose behind the parody exemptions to trademark/copyright law is the desire to preserve the freedom to comment on the activities of corporations. They have no right to silence you just because they don't like what you have to say, so long as you haven't veered into libel. His whole point--that Coca-Cola bottling practices adversely affect local water supplies--would be lost in a genericized version.

gr82bart: There are certainly corporations that do engage in this type of bullying as a matter of course. Mattel in particular is fond of this kind of behavior, but the "sue them even if you're wrong because the little guy can't afford millions in legal fees" strategy is shamefully ubiquitous in many corporate cultures.
 

127

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Andy K said:
They should look at the lawsuit McDonalds lost against activists in Britain recently. That action put many people off buying their product and gave McDonalds a very bad image.
Click to expand...

Do you mean the famous McLibel case? (it was about 12 years ago, so maybe you mean a more recent case).

If you are refering to McLibel, then it's even more ironic because McDonalds WON that case hands down. It dragged on for years, and the two people accused became minor celebreties, appearing on chat shows and the like.

They gained a lot of sympathy in the press, as a result of perceived corporate bullying.

However once the verdict was announced, and the details of the case were revealed, the judge issued a detailed document, considering each of the defendants claims in turn. McDonalds were recognised as being libeled on 9 of the 10 claims the defentants were making. Sugguestions that McDonalds were environmentally negligent, harmfull to the third world, and practically poisonous where thrown out. The claim that they were unfair to their staff was also thrown out - they were infact commended as being a particulary good employer by the standards of the market they operated in.

Only one claim was upheld - that the food isn't very good! I new that already, but it's now an official legal finding in the UK!

I'd NEVER eat in McDonalds, but this case was an object lesson that you should look at the evidence before following the press bandwagon.



In this case it's implied that the photographer took a photograph of a coke sign (which would be totally OK), but looking more closely it appears he created his own sign, which is slightly more tricky.

Ian
 

Andy K

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As far as the McLibel case goes, the Judge ruled that:

'the McLibel 2 had 'not proved' their allegations against McDonalds (deforestation of rainforest for cattle grazing, heart disease and cancer, food poisoning, starvation in the Third World and bad working conditions.
But they had proved that McDonald's "exploit children" with their advertising, falsely advertise their food as nutritious, risk the health of their most regular, long-term customers, are "culpabably responsible" for cruelty to animals, are "strongly antipathetic" to unions and pay their workers low wages.'
'Not proved' does not mean that the allegations against McDonald's are not true, just that the Judge felt that the McLibel 2 did not bring sufficient evidence to prove the meanings he had attributed to the leaflets they were charged with distributing.

The upshot of the entire case was that it was the most disastrous libel case ever pursued by a large corporation, in terms of bad publicity and damaged profits. To this day the McLibel 2 have not paid a penny of the £40,000 damages awarded to McDonalds and McDonalds has not chased them for it. You can read more here.

If Coca Cola are not careful they could find themselves in the same boat.
 

Bob F.

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Plus the pair received 10 grand because the police illegally released information to Mcdoobrys' lawyers and 24 grand (IIRC) at the European Court because they were prevented from obtaining legal aid. Mcdoobrys' legal costs are estimated at 10 million quid and lost business is inestimable, but very considerable.

I personally have little time for the pair of them: most of what was in the leaflet they were distributing was indeed nonsense (they didn't even write it, they just handed it out) but taking a legal sledgehammer to swat a very small gnat has indeed backfired on Mcdoobrys badly: putting their entire operation under a media spotlight it found very difficult to squirm away from, giving it a reputation for bullyboy tactics and which cost it dearly. It's notable that the comment they made when it was finally over was something along the lines of: "That was all back in the 1980's - Mcdonalds has moved on since then".

Quite an interesting event... Coca Cola really should take note...

Cheers, Bob.

P.S. - The original leaflet that started all the fuss is still in circulation (it is of course also available on the Net)...
 

tim atherton

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Huhhh? what's with the dishonesty stuff. The photographer produced and image and displayed it on a billboard - where's the "not honest" part

 

haris


As I understand photographer didn't take photograph, he make it. That means, it wasnt situation in which photographer walked the street, he saw bilboard with those bottles below that bilboard and take photo. He fing Coca cola logo,, he placed bottles under it and he make setting like on photograph, or he make photomontage. And then made final bilboard about which we are talking. That is what I understood. That is why I think it is not honnest. But, of course, if I am wrong, my apologize.
 

Paul Howell

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This is has an intense topic for many years, some criticized Eugene Smith for bleaching the eyes of a woman in a mental health ward in Haiti to make a stronger image or Margaret Bourke White famous picture of a line of African Americans lined up under large sign with a white family motoring in a new car with the caption heralding the high standard of living in America, the line was for people waiting for flood relief. This photographer made a political and social statement he did not present it as found photo or breaking news, if he painted the image would be it dishonest?.
 

tim atherton

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I don't see what's "not honest" about that?

You seem to be confusing a perhaps more photo-journalistic approach which may embody a certain ethical objectivity with almost every other kind of photography. By your approach, most portraits would not be honest, because it was manipulated in some way? Almost every photograph is manipulated in some way by the photographer - some ways are obvious, some are not. But that is the nature of photography - documentary photography (which almost never is), portrait, landscape, advertising - you name it. They are all about creating something.
 

tim atherton

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127 said:
In this case it's implied that the photographer took a photograph of a coke sign (which would be totally OK), but looking more closely it appears he created his own sign, which is slightly more tricky.

Ian
Click to expand...

from what I've read, I don't believe that's the case - if you've ever travelled in India (or Africa or Central America etc) you'll know that these signs are everywhere. Every little roadside shack that sells coke has its own home made sign - that's both what this appears to be and also what is apparently the case based on what I've read.

It's not clear if he placed the water containers there or not (and if he did, if he went off and bought them froma nice up-market Dehli store, or just enlisted the help of a few local people lining iup to get their water), but either way, that doesn't really matter.

Perhaps if the whole thing was created in a studio, he might be possibly be pushing it for credibility as a social comment or satire etc - I'm not sure?
 
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