When trade mark litigation will cost you Deer

When this Kat first heard the words "hoofed ruminant" this morning, he assumed that it was a rude allusion to the excellent ex-IP judge Lord Neuberger whom, he supposed, had perhaps been rebranded Lord Horseburger by a dissatisfied appellant [if you were on a planet which did not receive news of horseburgers, just key the words 'horse' and 'burger' into the news search facility of your favourite search engine -- or cut to the chase and click here for the Mirror's account of a recent 'night-mare' for leading British retailers]. However, a quick look at today's papers, both online and in the flesh, as it were, soon put him right.  Here. for example, is a sample taken from the Mail Online:

"One is instantly recognisable as the logo of Babycham sparkling perry. The other adorned Cath Kidston products at Christmas – but has left some feeling anything but festive. Babycham has launched legal proceedings against the British homeware company, claiming its use of a baby deer with a ribbon on its neck infringed the drinks firm’s rights.

The High Court writ also claims that the appearance of the logo on Cath Kidston products aimed at under-18s associates Babycham ‘with a blatant disregard for industry codes of practice to protect children’ [from alcoholic products -- or from stylised baby deer?].

The Guildford-based company behind the drink wants an injunction to stop Cath Kidston using the image (left), plus destruction of all products marked with it. But Cath Kidston denies perplexing shoppers, insisting that – although its seasonal deer image and the Babycham logo are both ‘hoofed ruminants, unaccustomed to wearing ribbons’[ditto Lord Neuberger, who has not been spotted wearing ribbons this side of the millennium] – there is no confusing similarity between the two. ...

Barrister [see readers' comments and corrections: he's actually a solicitor-advocate] David Wilkinson, for Western Wines Holdings Ltd and Accolade Wines Ltd, said in the writ: 'The claimants and their predecessors in title have, since 1953, used in relation to Babycham sparkling perry and related goods various iterations of a logo with the common theme of a baby chamois with a ribbon tied round its neck.

'Indeed Babycham was the first alcoholic brand and the second ever brand to be advertised on commercial television in the UK with a campaign in 1957. 'Cath Kidston Ltd has used and continues to use a logo in relation to its Christmas 2012 advertising campaign and range of related goods, which depicts a baby deer with a ribbon tied around its neck, which is substantially similar to the Babycham logo,' adds Mr Wilkinson:

'Their use in the course of trade of the Kidston Logo without due cause in relation to goods similar to those for which the registered marks are registered, take unfair advantage of, and is detrimental to, the distinctive character and repute of the Babycham logo,' it states. A drink, its packaging and any promotional material or activity should not in any direct or indirect way have a particular appeal to under-18s. The use of the Kidston Logo includes use on products relevant to under 18s, such as children's clothes. The application of the Kidston Logo to goods relevant to under-18s is liable to cause serious tarnishing and detriment to the repute of Babysham by associating (it) in the minds of the public and trade with a blatant disregard for industry codes of practice to protect children. 'It is denied that any of the said deer are "substantially similar" to any of the chamois. While it cannot be denied that, by nature, deer and chamois are both hoofed ruminants, unaccustomed to wearing ribbons, the differences in the manner of execution speak for themselves, not least arising out of the absence of horns and the springing "springbok" stance.'. ..."

Apologies for the most obvious but irresistible
caption to appear on this blog in 10 years:
"Bambi consults with Bird & Bird"

Personally this Kat is relieved that this litigation has not yet reached the point at which, shrieking "a plague on both your houses!", Disney joins in and claims its prior trade mark rights, copyrights, hoofed ruminant rights and goodness knows what else against both Western Wine Holdings and Cath Kidston. Everyone knows that Disney is the rightful owner of Bambi -- who goes all the way back to 1942.  Merpel's objections that there has been more than half a century's inaction on Disney's part are swept aside on the bases that (i) Bambi became an orphan when his mummy was shot [YouTube clip here; paper tissues here, here and here] and it would be cruel and inequitable to hold Bambi time-barred in respect of adverse use of the deer format while he was still a minor, and (ii) Bambi is a famous mark under the Paris Convention Article 6 bis, as conveniently interpreted by everyone who wishes to invoke it in all its mysterious ambiguity, and everyone knows that Article 6 bis trumps everything except the Olympic Games.

Make your own perry here
Make your own champagne here 
Serbian Bambi here