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State and Deliver Federal Court forces brands for "stork" lawn signs on newborns

An individual IP related good may possibly involve more than one IP area. Thus, if a good itself serves as an indication of origin, it may enjoy brand recognition, while an inventive look that appears on the good may enjoy copyrights. In order to maximise exposure to potential competition and infringements, each company should seek to maximise exposure by identifying, protecting and enforcing all relevant IPRs in its core products.

On the stork market, the notifying parties were rivals in the field of'stork rental', i.e. large signage representing a stork with a neonate and placed on a customer's grass to indicate the arrival of a baby. He was the only managing director and partner of Stork Market and held two trade mark registration rights for the design of the marks.

All of them showed a stork with splayed legs, lifted leaves and a flag with the inscription "It's a Girl!" or "It's a Boy!". Strork Market argued that signboards leased from a rival were narrow copy of its design and violated its trade mark and copyrights. That court dismissed the defendant's claim that the marks had become devoid of distinctive character because there was no license in writing from the trade mark proprietor to Stork Market.

Since the holder of the registration was the only managing director and stockholder of Stork Market, the conclusion was that a verbal license existed. Stork Market's use of the trademarks has therefore been considered by the proprietor to be use, while maintaining the validity of the registration. Reasons that the registration was not valid because it was primarily functionally based were also dismissed.

As the Court of First Instance held, the registration did not constitute either the design of the goods or a type of packing or an intention to invoke the defence of what would duly be the object of a Community design. In view of the many ways in which a stork can be defended, registration has not materially affected the competitiveness of a rival or otherwise adversely affected it.

Competitive stork design was very similar. Backed by proof of factual mistakes, the respondents were held responsible for the violation of the trade mark registration and for the transfer. However, the court rejected the allegations of intellectual property infringements and preferred the defendants' proof that the rival stork design works were originals and not copies from the stork market design works.

This case shows that a clear label provides better protections from competition for both trade marks and copyrights, especially for works or design that are critical to a company's performance. Trade mark infringements can be detected without proof of photocopying, and copyrights can be detected without proof of possible confusing consumers.

In particular, while the claimant here dominated in the lack of a license in writ, companies are best off with having all brand licenses in print, especially for more complicated business relations.

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