(via mefi) The World Intellectual Property Organization (WIPO) is often the object of ridicule (by those who know that it exists, at least) and accusations that it simply panders to the demands of corporate interests. For the most part, this description seems spot-on. But not this time.
WIPO decided recently that aberzombie.com shouldn’t be taken from its current owner and given to Abercrombie and Fitch. Parodies are a protected form of speech in the United States (not sure about the rest of the world… anyone?), and so despite the fact that they’re selling t-shirts that look like A&F t-shirts (except that their have ‘aberzombie’ on the front), the owner was absolved on any wrongdoing.
However, while it is true that aberzombie is phonetically and visually similar to the Complainants’ Abercrombie, there is a vast difference in meaning. Abercrombie (as is Fitch) is a surname used as a trademark. But as the Respondent argues, the word “zombie” is a distinct English word meaning, among other things, a corpse or creature that is under the control of some kind of force or spell (see any recent edition of Webster’s Unabridged Dictionary). Although “zombie” preceded by “aber” might call to mind the Complainants’ marks, especially in the context of the Respondent’s business of selling t-shirts, the Panel finds that the public would not confuse the Respondent for the Complainants, and thus Abercrombie and Aberzombie are not confusingly similar. This of course also means that Aberzombie is not confusingly similar to the Complainants’ Abercrombie & Fitch trademark.
Good to see basic freedoms and rights hold up to corporate pressure every once in a while, isn’t it? Might have to get me one of those shirts…
Can they take web design into consideration to see if they are “confusingly similar?”
Left by Colin on June 12th, 2003
I don’t think so… I may be wrong, but I think that would be a matter for civil court, as web design is copyrighted. WIPO, as far as I know, only deals with domain names that potentially infringe on trademarks.
Left by John on June 12th, 2003
At the same time, WIPO does consider the use of the domain (which is demonstrated by the content), so I think they do have a fair amount of leeway to take the content into consideration.
Left by Jordan on June 12th, 2003
That’s a load of crap. As if the “Aberzombie” folks didn’t do it on purpose to capitalize on the “Abercrombie” whether by parody or confusion. It’s a blatant rip-off. Trademark laws that apply in the hard copy world also apply to the Internet. I wouldn’t be suprised to see further litigation. This should have gone the other way.
This wasn’t about “basic freedoms and rights”. What freedoms/rights were violated? We all have rights to do anything we want…just remember that there are consequences in certain cases. In this instance, they got off when they shouldn’t have. And yes..WIPO is a joke…guess this furthers engrains that concept.
An excellent example of this type of litigation is the MS Windows vs. Lindows trademark infringement suit, which suprisingly hasn’t exactly been as easy as one would think for Microsoft. It started in 2001 (??) and is still going.
Left by Lin on June 12th, 2003
http://www.publaw.com/parody.html
Fair Use, Lin. Parody (even when for commercial interests) is usually fair use. The legal system’s opinions on the matter aren’t consistant enough to make it perfectly clear, but the WIPO ruling was consistant with their Rules as is clear in the decision.
The respondant demonstrated that his domain of aberzombie was not meant to confuse people with abercrombie, it was meant to mock and ridicule abercrombie. A different purpose entirely, fortunately allowed by the WIPO rules.
Left by Jordan on June 12th, 2003
Yup, what Jordan said. Parody and non-libelous criticism are among the most important aspects (as they are so easily trampled) of free speech.
Left by John on June 12th, 2003
Funny, they say 5K resolved, I wonder how many were in favor of large corporations?
Left by ~ender on June 13th, 2003
Who really cares. Abercrombie looks like crap anyway. Every person who shops there looks the exact same. Too small tee, wrinkled cargos/damaged jeans, and flip flops (which you should not be wearing if you feet look like they’ve been through some things.) Where is the variety? And besides they should be happy, because of the controversy. Controversy sells almost as much as sex. Hate to say it, but it’s true.
Left by Mooooooo!!! on May 11th, 2006