Big Red Soda Sues Big Ben Soda Over Big Trademark Dispute

from the big-deal dept

It's quite easy to get caught up in some trademark disputes where the trademarks are of a short nature and the industries are such that there are only so many ways to present a product. In those situations, it's too simple to point at two brands and claim they are similar, therefore, boom, trademark infringement. Instead, a little context matters. Let me show you what I mean using one recent example.

Two soda makers, Big Red and Catawissa Bottling Company, are currently at odds over the latter's Big Ben's Soda brand.

Big Red, the Austin-based maker of bottled red soda, is suing a small Pennsylvania soda maker, Catawissa Bottling Company, alleging that its Big Ben Cream Soda – also red in color – infringes upon its trademark, reports the Dallas Morning News.

According to court documents, Big Red attorneys say Catawissa's soda "is currently packaged in the same manner as Big Red soda: a clear bottle bearing a water droplet and the 'Big Ben' words" which are themselves substantially similar to the 'Big Red' words," and that the typeface and graphics on the bottles of the two sodas are too similar.

Again, you can see where a little context is important here. Both companies are making bottled soda. For that reason, we can pretty much just throw the part about both being sold in a clear bottle out, because, duh, there's nothing unique in the industry there. It's the other claims that are important. The least important of them is the "Big Ben" brand name, because "Big" is the only similarity, "Big" is a super-common word that isn't unique, while "Ben's" and "Red" have nothing to do with each other. The name of the "Big Ben's" brand is only relevant if the other claims Big Red makes are true: if the packaging graphics are similar, if the type-font of the words is similar, and if there is likely to be customer confusion resulting from either.

Judge for yourself how valid Big Red's claims are.

How similar is the packaging and font to you? If you answered that they don't look similar at all, then ding, ding, ding, you're correct! There seems to be little chance of customer confusion over the two brands at all, honestly. The only Big Red's dispute that might make some kind of sense would be if it thought that Catawissa had seen Big Red's popularity and tried to come up with a brand, any brand, that appeared just similar enough to try and make customers think it was a cheap knock-off. There would be a problem with that theory, however.

It should be noted that Catawissa has been making Big Ben-brand soda since 1926. Big Red's trademark dates back to 1957, and was the result of a consumer nickname that stuck.

It's a product almost a century old, in other words. Oops. Big Red, I'll note for you, is partially owned by the same company that makes Dr. Pepper and Snapple, so I'm sure there's some access to a bit of legal firepower on their end. It'd just be nice if all that firepower was reserved for actual infringement cases.

Filed Under: big ben, big red, soda, trademark
Companies: big red, catawissa bottling company

UK Court Says You Can Copyright The Basic Idea Of A Photograph

from the say-what-now? dept

We've talked a lot in the past about the "idea/expression dichotomy." This is an important concept in copyright law that says you can only copyright the specific expression, and not the idea. This is supposed to protect people from getting accused of copyright infringement for basically making something similar to what someone else made. Unfortunately, as we've been noting with dismay over the past few years, the idea that there's some bright line between "idea" and "expression" has been slowly fading away, and courts are, increasingly, effectively wiping out the distinction. In the US, we've seen this with the ridiculous case between a photographer, David LaChapelle, and the singer Rihanna, because some of her videos were clear homages to his photographs. The expression was entirely different, but the judge didn't think so, and Rihanna ended up having to pay up.

Over in the UK, though, we have an even more ridiculous ruling, as pointed out on Boing Boing, where a judge has ruled that a photograph using a similar idea, but totally different composition is infringement. You can see the two photographs here: As you can tell, the expression is totally different. Obviously, the idea is quite similar, but ideas aren't supposed to be protected. You can read the full ruling here, in which the court seems persuaded by the fact that the original photographer had to do some Photoshopping to the image. Now, it's true that European copyright laws are much more open to "sweat of the brow" arguments for copyright (which is not the case in the US), but even so, this ruling is ridiculous and troubling. The court even admits that the basic elements of the photograph (Big Ben, Parliament, London bus) are pretty common. It also admits that highlighting an object in color on a black and white background is pretty common. But it still finds that this is infringing.

I have not found this to be an easy question but I have decided that the defendants' work does reproduce a substantial part of the claimant's artistic work. In the end the issue turns on a qualitative assessment of the reproduced elements. The elements which have been reproduced are a substantial part of the claimant's work because, despite the absence of some important compositional elements, they still include the key combination of what I have called the visual contrast features with the basic composition of the scene itself. It is that combination which makes Mr Fielder's image visually interesting. It is not just another photograph of cliched London icons.

What troubles me here is that this seems to turn the judge into an art critic in order to determine how the different pieces are put together and what counts as expression vs. idea, and what parts are "copied." Perhaps even more troubling is the following sentence:

Mr Davis submitted that a finding of infringement in this case would give the claimant a monopoly which was unwarranted. He uses the word "monopoly" in a pejorative sense but it does not help. All intellectual property rights are a form of monopoly, properly circumscribed and controlled by the law. In any case I do not accept that a finding for the claimant in this case is unwarranted.

While he's right that all intellectual property rights are a form of monopoly, the question here is whether or not this is an appropriate monopoly. The reason Davis pointed out that this was a problem was because, as the court admitted earlier, the fact is that this would be creating a monopoly on commonly used photographic elements. That's the problem. Either way, it's yet another example of copyright law being used to lock up culture.

Filed Under: big ben, copyright, expression, idea, london bus, photograph, uk