Thursday, May 5, 2016

HKU Law Faculty on Whether 'Gucci' Paper Offerings for the Dead Violate Trademark (INYT)

"Rest in Peace ... Just Not in Gucci Loafers"
Michael Forsythe
International New York Times
4 May 2016
On Java Road in Hong Kong, a new pair of brown leather Gucci loafers, lovingly wrapped in cellophane, hangs from a storefront — the deal of a lifetime at less than $3. Just not this lifetime.
    The shoes are paper replicas, meant to be burned as offerings to relatives who have died — a modern twist on an old Chinese custom. At specialty shops across this city, the bereaved can choose from an impressive array of goods to send to their departed loved ones, including Italian sports cars, smartphones, six-packs of beer, cigarettes, dress shirts and sport jackets.
     One store, next to Hong Kong’s Ten Thousand Buddhas Monastery, even sells paper replicas of McDonald’s value meals, complete with fries, soda and a package of something called “Chicken MuNeggtc.”
     But the Gucci handbags and shoes that grandmother may have cooed over when she was among the living now appear to be out of her ethereal reach. A shopkeeper quickly snatched the loafers away from one inquiring customer, explaining that they were no longer for sale.
     It seems Gucci’s zeal to protect its brand extends into the hereafter. Last week, its parent company, Paris-based Kering, sent a letter to six local stores that sell the paper offerings, telling them to stop selling replicas of Gucci products because they were using its famous trademark that graces shoes, wallets, hats, jewelry and women’s purses.
     “What we are trying to do is let them know that Gucci is a trademark and we are trying to protect it,” Charlotte Judet, a Hong Kong-based spokeswoman for Kering, said by telephone. “We fully respect the funeral context.”...
     “People in Hong Kong are law-abiding,” Alice Lee, an associate professor of law at the University of Hong Kong who focuses on intellectual property, said in a telephone interview. “We have had the benefit of British rule for such a long time.”
     But Ms. Lee said Gucci would have a difficult time proving that makers of paper offerings infringed on its trademark. To successfully sue for trademark infringement, she said, a company has to demonstrate that people confuse the cardboard replicas with real Gucci products, which is highly unlikely.
     Her colleague Haochen Sun, a professor who studies trademark protection of luxury brands, said Gucci might have a case under Hong Kong law if it argued that the paper offerings, sold in shops only blocks from the company’s own retail outlets, blurred “the distinctiveness” of Gucci’s brand or caused it harm.
     The subtleties of trademark law have yet to trickle down to the street level... Click here to read the full article.

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