In February, JP of Japundit noted how Starbucks was duking it out with Asian coffee houses that were using logos that resembled Starbucks’. Well, a Korean court has ruled against the global coffeehouse chain in its case against local coffee chain Starpreya, explaining that the logos just weren’t similar enough.
In case you wanted to know how state-owned news agency Yonhap was reporting the decision, here’s how it begins:
Giant multinational firm Starbucks dropped to its knees today in its courtroom dispute with a native medium-sized firm over ‘knockoff logos’
{ 71 comments… read them below or add one }
I don’t understand how they could deny the similarity! I’m sure this ruling is all about nationalism.
Damn I would like to read the Korean article but I’ll just wait and hope someone translates it.
Knockoff, schmockoff. Who do those huge multinational brutes think they are? The Korean courts were just as righteous when they wouldn’t let FedEx take http://www.fedex.co.kr away from a legitimate, hardworking Korean [cough*cybersquatter*cough] firm.
I would have to disagree with the verdict on this knockoff. Seriously though… How similar does that look? Very much alike with the exception of a guy on it and different name, font. But the idea behind it is exactly the same. I say this is very unethical when Koreans do business in trying to look like someone they are not.
I honestly have to say that I was once fooled when I went into a coffee shop thinking it was exactly Starbucks because it had similar logo. I didn’t think twice of the issue, but knew instantly that it wasn’t Starbucks because of the setting and the coffee tasted like a horse’s patoot!
Well, clearly they’re not similar at all!
L: serif font; R: sans serif
L: stars point down; R: stars point up
L: classical woman in profile; R: more contemporary, half piscine woman facing forward
L: strictly representational; R: stylized
L: outer white circle thinner than inner white circle; R: same width
See, they’re completely different! Not to mention that “Starbucks” has only two syllables, whereas “Starpreya” has three syllables, making it 50% better!
(Ahem, I am being facetious…)
By the way, Japundit has a translation of the judgement in the same post the Marmot linked to above, dated 23 Feb 2006. Was the recent decision an appeal, or did it take Yonhap eight months to get around to publishing the news? (Or did Japundit update his post without a note?) I’m confused….
Good to see Starpreya is in good company…heck, even “Mt. Rainier” in Japan is in on the act!
I seem to remember Mr. Carr writing somewhere on this blog that the Starbuckses in Korea are actually half owned by a Korean company. Yonhap might want to revise their lead.
well at least Korea will get pissed when China eats into their sales with ripped off Beer and Ramyun. You wants to help me start up my SamSing company?
I think there are already Samsumg cell phones in China. Karma’s a bitch, ain’t it?
That’s nothing compared to all the Dunkin Donuts knock-offs. But they rip off Korean companies too. I saw a travel bus decked out in an almost exact replica of the Asiana airlines color scheme and lettering.
Nationalistic bias coming from a news agency controled by the South Korean government? No way!
In any case, Americans have been known to steal ideas and names from other countries. I’d be more than happy to discuss this over a pint of Budweiser Budvar with you.
The backstory on this not only involves the fact that Shinsegye is Starbuck’s franchisee in Korea but what it says about Korea’s commitment to “globalization”. This would be a slam dunk case almost anywhere but Korea even without going so far as the so-called “trade dress” doctrine, but once that global standard is acknowledged, cases like this wouldn’t even make it to a full-fledged hearing; they’d be decided by a preliminary motion for summary judgment (of course Korea’s legal system doesn’t really have anything resembling such a summary procedure; but that’s an issue about its lack of adherence to int’l stds.) because the obvious fact of this case is that the Korean competitor has deliberately chosen to create an overall impression that is designed to mislead. This is just institutionalized govt approved theft.
montclaire, excellent points.
I wonder at what stage the ruling was made. I bet the local counsels for Starbucks failed to establish the “fame” argument when opposing the Korean mark. Even an obviously famous company such as Starbucks has to prove the fame of their company before the courts with various paperworks. But still, even if the Korean Intellectual Property Office can be anal, the knockoff seemed obvious, and they should have ruled in Starbucks’ favor. Maybe the examiner didn’t like being charged 5,000 won for a cup of joe, and thought he would stick it to Starbucks.
Sperwer, I’m actually grateful to Starbucks, even though I never buy their coffee. If it wasn’t for them popularizing ground coffee in Korea, I wouldn’t be able to roast my own beans at home. We’d still be drinking instant coffee, and, occasionally, a cup of 10,000 won/100 g ground coffee (no kidding, that was the pre-Starbucks price) from Lotte Department Store.
The more this sort of thing happens, the more likely it is that the US (and possibly other WTO nations) will start raising the idea of sanctions against South Korea for failure to enforce at least the minimum standards for trademark protection under its treaty obligations. After all, if the court found that there would be no likelihood of confusion in this case, it makes it hard to imagine where they ever would find likelihood of confusion.
Yes, this is true enough. One important issue is that there are few judges in this country that have any real knowledge of international IP laws and the premise upon which they are founded. This sort of ruling reflects that very lack and gross ignorance.
I did meet one Korean judge who was interested in pursuing IP law in the U.S. two years ago but I am not sure where he is just now.
Without knowing the details, if the Korean co. applied for their mark before Starbucks, then their mark would be the senior mark. Korea does not have a first-to-use system, but rather, a first-to-file system. So, if the Korean co. filed the mark before Starbucks, then Starbucks has limited options in opposing the senior mark, one which is to oppose the mark based on the fame of their mark. Proving the fame, even for a mark like the Starbucks logo, can be asinine. From this, I’m assuming the Korean counsel for Starbucks failed to provide enough evidence proving the fame of the Starbucks logo. That’s the only logical conclusion I can come up with.
Who you gonna trust? Vision-impaired, uber-nationalistic judges or your own lying eyes?
One gets the impression these jackasses would award damages to a Korean street vendor if he filed suit against Gucci and Louis Vuitton for copyright infringement on his knockoffs.
Of course, considering the story said that the Patent Court made the ruling, you’d at least expect the judge to have some sort of knowledge of IP law…
Eh… It’s pretty much a foregone conclusion that this isn’t going to make any sense without at least having the opinion in front of us, and even then, it’s unlikely to make much sense. The news story kind of made it out to seem like the court went out of its way to disprove likelihood of confusion, making it look like the court actually got to that question (unlikely had they found that the Starbucks trademark was invalid or junior), but them judges do like to ramble, hedge, and pontificate from time to time. Maybe they decided it initially on some other grounds, and the reporter, not knowing any better, just latched onto the most down-to-earth, non-legalese argument?
The question is whether the knock-off is really designed to inspire confusion. And I doubt that in this case. The sort of brand obsessed young women who go to Starbucks (for their 5000 won cup of brown-colored milk and sugar) could spot the fake logo from a hundred yards off.
Starbucks must have been out of their mind—the logos are totally different.
Are the Australian and US flags the same because they are both red, white, and blue, have stars and stripes, and have a rectangle pasted on the top left quadrant?
Don’t think so.
I’ll leave it to still flying legal eagle Carr to fill in the details (and perhaps correct what very well might be a little dated understanding on my part), but people here are mixing up a couple of topics.
The “famous mark” doctrine basically protects the holder of such a famous mark who may not have registered it in a particular place and/or with respect to a particular class of goods against claim-squatting carpetbaggers by permitting the original holder to void the carpetbaggers’ registration on the ground that the mark is so well-known, regardless of registration, that everyone else is held to be on notice of the original owner’s claim of right. It’s not entirely clear from the news report, but that doesn’t seem to be in issue here; the case at hand seems to entail a straightforward claim of infringement based on similarity. [NB, though, that "globalized" Korea doesn't really accept the "famous mark" theory; it only allows its application when the famous mark is famous among the general run of Koreans in Korea, e.g., whether paddy farm ajummas would recognize the Gucci mark.]
Insofar as it’s a similarity based infringement case, the flaw in the Korean court’s approach is of the missing the forest for the trees variety. It focuses on a couple of distinctive differences between the marks while overlooking the overall similarity that could mislead relatively inattentive or distracted consumers and/or weaken the strength of the Starbucks logo through dilution.
This is an unusual case (well, not unusual in the sense that Korean courts don’t do this to hapless foreign trademark holders regularly, but weird nonetheless). I’m a little reluctant to talk out my backside and have no information other than what’s in the papers; Starbucks didn’t call us for this matter, or any other. I am still hopeful to get business from Starbucks one day. Starpreya seems like a less-attractive candidate, the multinational’s supine position before the mighty Korean SME notwithstanding.
However, it appears from the story that what happened here is a reversal for Starbucks at an intermediate-appellate level. It will still be possible to appeal this seemingly-erroneous decision to the Supreme Court. (Oh, to make the kind of money Kim & Chang will get in this case! Hundreds of thousands of dollars.) But our friend Sperwer’s notation on the difficulty of prevailing on the “famous mark” doctrine is right on target. Korea basically follows a standard so onerous that no foreign litigant can meet it — if Starbucks is not a famous mark known to the general public, then nothing is. This is a clever end-around international standards, so that Korea can “protect intellectual property” while still winking at the same old ripoff: Adopt the language of the prevailing standard, but then interpret the same language differently so there’s no meaningful protection. Or just do nothing at all, as we see with the ripoff DVD sellers on the streets.
What’s odd in this story is the Yonhap report indicates that the Starbucks mark is senior to the Starpreya mark — Starbucks registered first. The real question, then, is How on Earth did Starpreya get its registration approved? We’re dealing with a case right now where a foreigner’s registration of its mark in the ice cream space has been rejected because a Korean company has a mark which incorporates one of the words. Their market segments are completely different — our client will sell in a restaurant setting only, while the Korean product is a supermarket and corner-store brand. But there is apparent similarity in the name (the logos, however, are exactly different) and therefore, says KIPO, confusion is inevitable. So, Mr. Foreigner, no registration for you. But local minnow Starpreya, with the highly-similar name and identical logo, congratulations — your mark is approved.
Looks like a happy ending for Itaewon’s Starbutts, too.
Is Starbutts getting sued?
Looking to represent? Payment will be in kind though. And whereas Yonhap wrote,
to note Starbucks’ defeat, at Starbutts dropping to its knees is a victory.
Guys, I’m sure im not the only one to notice PROWSTAR COFFEE… Here’s a great link of their storefront…
http://blog.lagateradigital.com/wp-content/subidas/prowstar1.jpg
Any Canadians ever see the IGA logo adorning some dumpy corner store? I love it all. Almost as good as fake Kraft Dinner. This link holds a whole list of Starbucks wannabes…
http://blog.lagateradigital.com/2005/07/
Sperwer, you’re right.
Brendon, I don’t think Starbucks is a client of Kim&Chang, at least for ip matters.
Since when has originality been a virtue in Asia?
Copying, following, imitating is just another way of defering to authority, and Starbucks, almost synonymous with gourmet coffee, is the “authority”… Why Starbucks should be sincerely flattered!
The only defence in this case — per a-letheia’s comment — is to do or make something so unique and good that everyone will know the rip-off when they see it. Quality does speak volumes.
Now if Starbucks could only establish a regional roasting operation. As it is, their regular coffee is too old by the time it reaches here, in Korea (from Washington), and is shipped up to Seoul by truck. That is why I use only local roasters and do not buy Starbucks coffee.
Brendon, you think that after this ruling a bunch of Korean knockoff brands are going to be registered as trademarks? Nice, Leebox, etc.
It’s only a matter of time before some attention whore expat in Korea with a lonely blog starts copying the Marmot brand.
Oh, bluejives…Must make you feel all fuzzy and warm inside for having been able to put ‘whore’ and ‘expat’ in the same sentence.
“Since when has originality been a virtue in Asia?
Copying, following, imitating is just another way of defering to authority, and Starbucks, almost synonymous with gourmet coffee, is the “authority”… Why Starbucks should be sincerely flattered!”
Defering to authority? Well, maybe… I’ll clue you in an inside joke though. There is a fine line between imitation/copying and something called parody. Asians, being a highly practical lot, figure, well, they might as well get rich while they’re at it also.
Actually, the question is whether the knock-off actually does inspire confusion. Intent is pretty well irrelevant.
Cute. Of course, in this case, it’s more like comparing the flags of the US and Liberia (or Australia and New Zealand)…
On the positive side of all this, I guess Smoper Chicken can consider themselves safe.
Well, considering that the Patent Court doesn’t seem to think the marks similar enough to engender a likelihood of confusion, it probably happened quite easily, especially once Starpreya paid the ‘special registration fee’.
Seouliva (#27): IGA is a small grocers’ cooperative, or started out as such. Back in the 70s, there were a bunch of very small supermarkets in Vancouver (small by today’s standards, or even modern IGA standards) that were IGA stores. Ditto for a small supermarket I saw once in smalltown rural Quebec. Red & White and Stongs were other chains of small-scale stores. Even big chains today like Safeway started out with small storefront operations.
I did like those pix of blatant infringements, though….
Sorry for the OT tack here.
IGA: Independent Grocers’ Alliance. Not quite a cooperative, but it started out as a way for independent grocers to compete against emerging chains in the pre-WWII years.
“…dropped to its knees…”
While that certainly makes the story sound like the motive was all the more nationalist, it is nevertheless a common expression for “losing” in some sort of competition. I might have said something like “had to kneel before” the oponent, the decision, etc, but that is another matter. Google 무릎을 꿇다 and you can see it’s quite common and used towards Koreans as well in international competition.
My understanding is that the law on trademarks says there cannot be a specific degree of similarity. I’m not sure what the percentage is, but, for example, if we say two trademarks have to be 40% different to coexist, what happens is that people design trademarks to be just different enough. The trademark above looks that way, as if they made theirs just as similar as they possibly could, right up to the line, without crossing it.
“In any case, Americans have been known to steal ideas and names from other countries. I’d be more than happy to discuss this over a pint of Budweiser Budvar with you.”
I cannot tell you how many artsy-fartsy quarters within major American metropolises, including that third-rate Babylon known as New York City, which I happen to reside in, try to do pale, imitation act of “quintessential European”, right down to the insufferably annoying, Mid-West transplant, Mommy and Daddy’s trust fund financed “hipsters” with their Ducati scooters, sipping expresso in tiny, white porcelain cups in outdoor cafes.
When Asians copy American ideas, it’s called “stealing, or lack of originality” but Clint Eastwood and so-called Spaghetti Westerns are only “borrowing or adapting” Akira Kurosawa’s original work. American manufacturers only “borrowed and adapted” quality circles and statistical methods of efficiency (yes yes, I know who Ed Demings is, so just drop it).
I agree with R. Elgin above on the quality of SBucks coffee.
I’ve got it from a very good source that Starbucks-Korea uses mainly the cheaper, higher-caffeine Robusta bean–especially in their Lattes wherein no one would notice. In the US they use the higher quality, arabica.
I love that tip box in Starbucks. That’s like tipping f**king McDonalds.
Please do tell, Mr. Bojangles, who is this Demings (sic) pal of yours? And in the imitation of “foreign”, do you find the outdoor cafes of New York City to be more authentically “foreign”, or less so, than the hambag steak we so enjoy here in Seoul?
“When Asians copy American ideas, it’s called “stealing, or lack of originality” but Clint Eastwood and so-called Spaghetti Westerns are only “borrowing or adapting” Akira Kurosawa’s original work.”
The difference is that the Asian Starbucks “imitators” are attempting to instantiate themselves in place of the original. (the Greeks called this ‘Psudos’, falsity). “Take the money and Run” allows “Yojimbo”, the original, to “shine through” as a kind of respect. You picked a bad example.
There is no doubt that Americans like anyone else copy, steal, imitate, but it is not an ideal there, as it is in Asia.
Of course, “stealing” is not in ideal anywhere…er, should have clarified…
Bluejives, once again dropping a worthless analogy. In an attempt to condemn American intellectual theft he refers us back to the Spaghetti Westerns – films made by Italian producers and shot in Spain and Sardinia.
“Take the money and Run” above should be “A Fistful of Dollars” …I should sleep more…
At least next time we read about Koreans bitching about Chinese knockoffs we’ll have ammunition to fight back with.
Speaking of Fivebucks, is it me or is their coffee o’ the day weaker here than in the U.S.?
I believe Starbutts was placed on the USFK off limits list. Of course, I haven’t bought a cup of coffee there since.
“Coffee o’ the day” is usually s**t. How can you test it? add a bit of soy milk (500 won). Soy milk will not mix with the grease in low-grade, crappy, old coffee. Show Starbucks the results, and get your money back.
By the way, if it mixes well (you’ll know if it doesn’t), it is good quality.
Somehow I don’t see them actually refunding money over a failed soy milk test….
go and find out…
Yeah, but then, you’ve ruined a perfectly good cup of coffee with soy millk, so you lose either way, don’t you?
Remember… Korea itself is nothing more than a bad copy of America.
If you want better than Starbucks (in Korea) and fresh roasted, try the Coffee House in Apkujongdong. I just got my
stashsupply today or their house blend and Ethiopian.I feel bad I have been bogged down an missing much, espcialy something up my alley. As for some details, Starbucks is far from a foreign company. Its a JV whith Shinsaegae and the US company only takes 5% of sales according to a Chosun article a while back. Rifle through my blog for more details.
Sewing> I hate to say it but your tounge-and-cheek comparision break down is likely the reason why the decision was made the way it was. The design elements they have in common are too generic for Korea I think (circle logo with typing around, stars, green black and white motiff etc.). The argument that needs to made really is the combination in such a way will confuse the consumer as to the orgin of the goods. The court ruled the marks were not distictively simular, go figure.
Dram_man:
You know, after I posted that breakdown, I discovered Japundit posted a translation of the judgement back in Feb of this year (!? – like I mentioned above, perhaps the latest decision was an appeal). It was kind of freaky that in fact, the judge was arguing in a manner similar to what I wrote…except whereas I was being tongue-in-cheek, the judge was being completely serious. He wasn’t seeing the forest for the trees, perhaps?
“Please do tell, Mr. Bojangles, who is this Demings (sic) pal of yours?”
Ah yes. This is what happens when a technical guy talks with an ambulance chaser. It’s my fault.
“And in the imitation of “foreign”, do you find the outdoor cafes of New York City to be more authentically “foreign”, or less so, than the hambag steak we so enjoy here in Seoul?”
I usually dont find myself gravitating towards pretentious dining establishments that specialize in overpriced bullshit that NYC seems plagued with. But some of the cute waitresses (who are only doing this gig while en route to bigger and better things, of course) do sometimes happen to manage rather good affectations of British or other foreign accents.
Bluejives, once again dropping a worthless analogy. In an attempt to condemn American intellectual theft he refers us back to the Spaghetti Westerns – films made by Italian producers and shot in Spain and Sardinia.
Allow me to clarify myself. All I’m saying is before you start complaining about the splinter in someone else’s eye, pull the plank out of your own eye first. Yes, Koreans, Japanese, Asians do “borrow” a lot from America. In fact, almost everyone around the world borrows a great deal from America. America has been and continues to be a great generator of successful enterprises, technology, ideas, inventions, products, services, media, art and culture (depending on what you define as “culture”).
Now.
When America was in the throes of development, industrialization, and mass exodus from the rural farms to urban areas about 100-150 years ago, guess what happened? Yes, Americans copied others. *gasp* They copied SHAMELESSLY. They copied and stole British steam engine designs, locomotive technology, German chemical and steel making know-how, etc. The great Thomas Edison himself shamelessly STOLE and claimed as his own, inventions that really should be attributed to an obscure Eastern European named Tesla.
Furthermore,
I am not condemning intellectual theft. In fact, I dont even believe in such a thing as intellectual theft. For the most part, I think this an arbitrary and artificial concept mostly made up by corporations and lawyers in order to fatten their pockets. I believe in open source. I think software and source code should be free and widely distributed. Credit should be given where credit is due, of course. But seriously, who really cares who invented or thought of what first? The concept of IP is a great hindrance to progress. Progress happens because existing ideas and methods are combine in new ways to form new ideas, methods, etc. The marketplace of ideas encourages the growth of good ideas and the elimination of poor ones through natural selection. Intellectual property protection is like a barrier that impedes the free flow and exchange of ideas just so that a few people can be rich at the expense of overall human progress. This concept that I am trying to express is a key ingredient of the post-Capitalist model.
Furthermore, no one really “owns” anything, including ideas. A Thomas Edison does not “own” the light bulb. Because if Edison did not think of the light bulb, someone else will eventually. No one owns anything any more than you and I “own” math or science.
BTW, my great to the umpteenth power great grandfather OOOOooog invented the wheel. All you mofo’s owe me mad royalties.
Ya follow?
Well, regarding Open Source, the concept definitely has its merits, but keep in mind that people who contribute to open source projects are actively consenting to having their work used, modified, etc. by others.
Yes. People routinely write books, invent things, and create companies not through a desire to be rewarded for their work, but for a desire to contribute to the ‘marketplace of ideas’. People spend millions of dollars in research perfectly willingly, knowing that a second-comer can use whatever they invent without paying a cent — just for the joy of contributing to the overall well-being of the human race. Just like people willingly collectivize farms and industrial production, because really, who wants to own anything?
The point is… While the IP system does inhibit progress in some respects, the benefits of incentivizing progress still outweigh the detriments.
Sorry… patents don’t last that long. Funny, though.
By the way, why can’t we get more of these last few comments from Bluejives, and less of the pawikirogi ad hominem invective? I rather like this side of Bluejives, where he argues the point.
Right on the money Zonath.
Bluejives>I think part of the problem with this all is what exactly constitutes an idea and what is a product. Compounding this question our technology now and in the future. I do not know where exactly I fall on this issue personally. Its a very tough call.
As far as the logo issue at hand, sure its easy to pile on the evil-imperialist-multinational-corporate-capitlist-consipracy, however what about the marks that really do matter. What about that “UL” mark of Underwriters Laboratories giving some indication of proven safety? What about “certified organic” type marks owned by governments or agricultural co-ops? What about logos and names related to government bodies? If we then expand this concept of the importance of a mark/brand we can say that STARBUCKS carries a similar endorsement of the product or service attached to it.
There are some good reasons for protecting marks since they can actually help consumers make choices.
^ Response to Dram_man
Take this logo issue. Imagine you’re the judge sitting on the bench. Starbucks claims that Starpreya imitated their original logo. You look at the two logos. You see a degree of undeniable similarity. But the two arent exactly the same either. How do you quantify the degree of imitation? At what point do you draw the line?
Let’s see…
Similarities:
Both logos are circular.
Both have a green, white, black color scheme.
Both have a name that is two words that start with a “Star…” and ends with “Coffee”
Both logos have two stars
Differences:
The letters are different fonts
The green color are of different hue
The icon in the middle is different (Starbucks’s is female while the other one could be either male or female, who knows?).
The picture of one is a profile while the other is face-forward.
You can see how this exercise can get really absurd if you start going down this slippery slope. I mean how do you objectively quantify this? It’s clearly an inexact science, sort of like handwriting recognition or psychological profiling.
Furthermore, in a nation like Korea, the wrong precedent set by a case such as this could unleash an avalanche of similar litigation, which would be a nightmare.
Even in the United States, I cannot tell you how many Korean-owned businesses there are that rip off well-known brands, even from other big-name Korean businesses. There must be hundreds of mom and pop “Hyundai Automotive Repairs” or a “Samsung Call Taxi Service”, you get the drift.
There are some good reasons for protecting marks since they can actually help consumers make choices.
My opinion is that the legal establishment (of any society) do and should have much better things to do than occupy themselves sorting out supremely pretty issues such as this. In fact, the government and the courts should stay out of most purely business related intangible property or intellectual property issues. Let the market decide. Let the “invisible hand” be the judge. If coffee consumers decide that Starpreya is a better option than Starbucks, or vice versa, then the jury has reached its verdict.
^ Response to Zonath
Microsoft ripped off the mouse, pointer, Windows and icon OS interface from Apple Computers. Apple, in turn, stole these concepts from Xerox PARC, which conceived them in the late 70s. Now, does either Microsoft or Apple pay dues to Xerox?
If Xerox had insisted on protecting their intellectual property, hell, we may still be working with computers that is reminiscent of the old DOS. The mouse and Windows interface may still be curious laboratory concepts. We would not have had the computer revolution. There would be no IT industries.
If DARPA had insisted on keeping the predecessor of the TCP/IP network protocol a proprietory item, there would be no internet today.
Information should be free. Intellectual property protectionism is regressionary and anti-progress. This is what history teaches us ever since fire was discovered.
They probably wouldn’t today, since if the computer mouse was invented in the 70s, the patent on it would have expired by now. Did they ever pay royalties in the past? I don’t know.
DARPA, as a branch of the US government, cannot hold intellectual property rights. So you’re a bit off-base there. But Microsoft Windows, Apple OS, UNIX, and plenty of other operating systems are protected through various (strictly-enforced) intellectual property protections. None of this seems to have hindered the development of the Internet much… In fact, without copyright protection, what incentive would Microsoft or Apple have to update their operating systems? We’d still be running off DOS.
And even assuming that DARPA could have copyrighted the TCP/IP protocol, there would have been no restrictions on anyone else coming up with a similar protocol, so that would have set the Internet back what? A couple of months to a year or two?
Impressive, considering that intellectual property protections have only been around (at most) a few hundred years. And considering that those last few hundred years have seen greater advances in the sciences than the millions before, how exactly is IP protection either regressionary or anti-progress? Can there really be a plausible argument that, absent IP protections, we’d all be amazingly more advanced than we are today?
Because of IP protection, writers get paid to write books and musicians get paid to perform music, while scientists get paid for their inventions. Because of IP protection, we can be reasonably certain that when we buy ‘Coca Cola’, we’re not buying motor oil or pig’s blood (or Pepsi). How is any of this a bad thing?
Simple answer is that you don’t, because if you do, you end up being a silly moron who does the same thing the Korean Patent Court did and find that the differences are just too great for anyone to actually be confused. Of course, that also assumes that your average coffeehouse customer is going to linger in front of the sign long enough to register the differences above the obvious level of similarity, which I would be willing to wager, most people just don’t do.
The simple answer to your questions is that you draw the line either where the average consumer is:
1. Likely to be confused or
2. Actually confused.
And of course, this doesn’t come down to the sort of fine-tuned, nitpicky and detail-oriented analysis that the court in this case seemed to embrace — it comes down to whether or not the average consumer, upon seeing the sign in question would be likely to confuse it for Starbucks’s, even if, upon a second look, they were to realize their mistake. Because otherwise, ‘Starpreya’ is using that confusion between their products and Starbucks’s in order to unfairly compete — they’re betting that people, once they’re at the door and aware of their mistake, will still come in for a cup of coffee.
Correct me if I’m wrong, but if Korea set the wrong precedent in this case, couldn’t they just rule differently in the next one? Being a civil law jurisdiction (rather than a common law one), Korean courts generally have that luxury, don’t they?
So how do the consumers decide which is better, if you take away their only basis for making that decision (a protectable trademark)? After all, under your system, anyone could open a coffee shop and call it ‘Starpreya’, so how would the real Starpreya be able to distinguish their coffee from the imitators’?
So what about “Prowstar Coffee”? Are they safe now?
Here’s the reason why IP protection is regressionary, just compare the Microsoft Windows OS versus the Linux OS, as an example. The two OS are based upon two completely different models. Microsoft’s products are based upon closed source development. Only Microsoft employees work on Microsoft products. You pay hundreds of dollars for huge, unwieldy, basically shitty software that is unstable, prone to crashes, have to constantly install service packs, patches, and defend against spyware and viruses.
Linux, on the other hand, is open source, meaning that the source code is accessible by anyone. Anybody around the world can contribute, enhance, tweak, or troubleshoot Linux-based software versus a few hundred brick & mortar employees. Linux is engineering practices driven while Microsoft Windows is mostly market or business logic driven (big difference which leads to the difference in the quality of the products). If you want to install a web server or an email server, you just download Apache or Sendmail (for free) and its robust, rock stable, and well designed. With Microsoft, you have to pay license fees of hundreds of dollars for IIS or Exchange server which are not as good as their opensource equivalents. So the open source model has already proven its merit over the closed source model. Furthermore, IP protectionism is conduscive to monopolization, and we all already know that government and legal sponsored monopolization is NOT preferable to unbridled, free-wheeling competition.
Furthermore, the current situation within the IT industries in Asia clearly demonstrate that IP protectionism creates more hassle than good. Samsung and LG doesnt want to pay hefty royalties to Qualcomm for the CDMA chips. So they develop their own chips. It’s just a different communications protocol but this creates a lack of standardization and uniformity. In a networked world, different devices that cant even talk to each other is completely useless and this slows down the overall rate of progress within the industry. Same thing with Chinese IT companies with their next generation wireless networking equipment. If IP protectionism wasnt an issue then no one has to waste their time and energy sorting out bogus and useless standardization issues.
People can still make money in an IP protectionless world. Sell the product. And if the competitor takes your concept and creates a better product using your concept, that’s good for the consumer, good for the market, forces you to be more competitive and vice versa, and drives quality and development. If all companies do is fight stupid, time-wasting IP litigation issues, only the lawyers get rich (and they dont contribute anything of tangible value to society anyway), the cost is passed on to the consumer, wasted talent and effort goes into fighting legal battles rather than developing new technology or products, and basically nothing valuable is accomplished.
Bluejives>I think we need to disconnect patent from trademarks, because if what your just posted is your opinion, then the whole idea of the two marks green circle coffee co. marks is irrelevant since they have no intrinsic value. Or for that matter the Korean co. could openly use the mark Starbucks and the logo and people will just have to go through trial and error to find the good “Starbucks” versus the bad “Starbucks”.
Then lets think of the economic consequences of all this. Consumer satisfaction is down since they have to consume a certain amount of sub-optimum coffee. You also have a waste of coffee and other resources since the bad “Starbucks” locations would be taking up the same amount of resources to produce the sub-optimum coffee. Finally we also have the opportunity costs these inefficiencies of wasted coffee, real estate, etc.
So would it not be more economically efficient to label one set of stores “Starbucks” with a certain amount of predictability of the product and another a non-confusing name/logo that would deliver another predictable product.
As for the Patent question, there is no doubt that it distorts the market. The bigger question though is does it distort the market in a favorable or unfavorable way. there are quite a few ways to take that discussion from there, but its different from the trademark question in my opinion.
Blue> The thing is here is I am trying to nail down your argument, or arguments, so we can discuss it. I cannot see the compatibility with your complaint the Starbucks decision was faulty with your complaint that all IP law leads to inefficiency. They seem in conflict.
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