The Labubu, the Lafufu, and Intellectual Property Wars

If you haven't heard about the Labubu yet, you must be very disconnected. Aside from being a recent craze among youth and the trendy, they've appeared in TV shows, in various unsanctioned forms, and in the news. Most of us have heard about the Labubu and their counterfeit counterparts, frequently known as "Lafufu".

For those of you who somehow have managed to remain oblivious, first, let me congratulate you on your commitment to that. Second, let me introduce you to what I've started thinking of as the latest Beanie Baby (because that was my childhood's out-of-control craze). These plush toys come in all sizes and are collectively known as "The Monsters". They embody the concept of grotesque-cute, having cute cuddly animal bodies, chubby cheeks, and aggressively lowered eyebrows and (exactly 9) bared, pointed teeth. 

A soon-to-be-released Labubu, selling for $299.99. Image taken from Pop Mart website.

Now, I am not writing this post because it struck me as a good idea or piqued my IP interests like usual, but because I was asked a specific question regarding the Labubu/Lafufu relationship by a friend of mine. And, as always, something simple quickly became complex, because IP is like that. 

Let's start with paraphrasing her question. She wanted to know why there were so many fake Labubus on the market, and why their manufacturer didn't secure exclusive rights via design patent. [I'd like to briefly redirect things to point out that I have managed to teach people around me so much about IP! There's no way she would have been aware of design patents and their purpose if I hadn't talked about them enough.] She also wondered how it was possible for some counterfeits to be so faithful to the original product as to be almost impossible to differentiate. After all, who hasn't, over the years, seen a dupe of  designer brand with some kind of misspelling or inverted logo to try to dodge infringement? Yet some Lafufu might as well be made in the same factory by the same people, they are so accurate. 

[Side note: I recognize it is possible some are stolen from authorized factories and sold off-brand, I am not going to focus on that.]

My friend's question has multiple answers, the first of which is fairly easy. One of the aspects of Labubus that makes them so collectible are the many different varieties, some of which are rare, and must be bought "blind" in concealed packaging. This drives the desire to buy more, enhancing the feeling rarity and specialty when found. It's strategic marketing but makes a design patents almost impossible. Because these differences are in appearance, and design patents protect specific appearances, each Labubu would need its own separate patent (at least in the US). Since there are varieties are multitudinous, and with new versions introduced and potentially released for a limited time, pursuing design patents for the full range would be wasteful. The cost, in both time and money, would outweigh the benefits. ROI: probably negative.

The second answer, and at a sort of intermediate level, is their international marketing. A design patent can only be enforced in the jurisdiction where it was issued. So not only would they need many different iterations to protect all the different designs, they would also need to pursue them across many patent offices. No real global patenting office exists; just treaties to help ease the process of transferring applications from one granting body to another.

At this point, if you're thinking about the possibility of some kind of trademark on an international scale, or perhaps trade dress for the Labubu, you'd be closer to a potential answer--if the company Pop Mart (owners of Labubu) wanted to represent their whole brand with the Labubu or The Monsters. As best as I could find, they have many registered marks in many jurisdictions, including "The Monsters" and "Labubu", but that mostly just protects them against other entities identifying the source of the sales as Pop Mart or their Labubu. Their attempts at using the trademarks haven't been effective. 

A logo owned by Pop Mart, found on WIPO

This actually brings us close to the third answer of why there are so many Lafufus of varying quality and correctness. Enforcing a brand on a global scale is challenging at the best of times, but when you have a fast-selling sensation it is even harder, because counterfeits pop up and disappear as quickly as the real merch. And if they don't have the right kind of claim attached to their Lafufu, it might not quite be infringement. 

More than that, the company Pop Mart and the Labubu originate in China. And China is not known for being terribly strict enforcers of IP rights holders. In fact, you wouldn't be blamed for thinking that China is one of the top sources of fraudulent, infringing goods sold worldwide. The government does not have a good reputation for protecting foreign IP holder rights in China, or for staunching the flow of fake goods from their country into others. 

Since they might even have a chunk of their national income derived from these fakes, trying to suddenly enforce the IP rights of a massive sensation might be difficult. Not that the government isn't trying; they are, in fact, attempting to do their best to control it. 

Beyond that, many consumers, quite frankly, don't care if they are buying Lafufus. They know they're fakes and still purchase them. Some revel in the weirdness of the fakes and the variations they present on the original. That makes it even harder to stop their production, when the demand for a fake might justify the risks of setting up a more permanent operation.

Yet another complication? I've read that two of the best sources for a Lafufu are Shein and Alibaba, which are Chinese-owned online sales companies. They can't enforce Labubu IP within their own borders.

It extends beyond that, though. These are just the three most obvious and accessible answers for why the Lafufus seem to run unchecked.  

 

Meanwhile... I can only imagine the schadenfreude certain IP enforcers are feeling as China's IP enforcement struggles to crack down on counterfeits and their circulation.  

Trademarked Chocolate of Kazakhstan

I've been a very bad blogger lately. I apologize. However, things have been very busy for both the PTRC and other aspects of my job, so I hope you'll forgive me in the interest of enjoying the fruits of those labors.

Meanwhile, here's a post I've been planning for some time but just haven't gotten around to composing.

A Kelley Center student worker from Kazakhstan visited home over summer break and returned with a gift for my boss and I: a national chocolate bar.  It was extremely delicious and unfortunately has not reproduced itself.

As I was eating it, I happened to notice that it had a trademarked name, and that piqued my interest. After all, I know nothing about trademarks from Kazakhstan! And it's always fun to look up a trademark, especially for a particularly attractive design. The striking packaging is based on the country's flag.

Chocolate of Kazakhstan! Famous and delicious

The brand appears to be Paxat, and I'd like to find a registration for this specific appearance--the font and oval around it. 

Detail of the brand logo and some other regulatory stuff

I'd also like to try and find something that matches some of these other decorative elements, since they have a registration mark next to them; but I am uncertain if they are just for the name that included or the whole image.

This design motif is one of the parts based on the flag of Kazakhstan, along with the sun and eagle

I found two registrations that appear to match, but neither of them are for a logo or image, just a brand name. Also, one is entirely in Russian and I can't read it, so I must be forced to assume that it matches... It is the right name and is from Kazakhstan, so it seems legit. The other is in English, partially, and has some unrelated goods and services, but it does include among them candies. 

I made a point to look up the Article 6ter Kazakhstan entries--those are basically indicators for states. Read more about them here. For your reference, here's a screenshot of the entry in the 6ter database for the flag:

Article 6ter Database results

Think you can do a better job of finding the trademark? I used WIPO's Global Brand Database. Let me know if you have more success and what you used to find your info!

The Trademark Olympics!

Like any big sporting association, the international Olympic games own many marks. In fact, there are so many Olympic committees and associations it's almost impossible to do a search for Olympic trademarks. Do I search for something international or just in the US? And who really owns the concept? 

Truly, I had no idea when I started this, and my ignorance of the legal and organizational scope of the Olympics really only became clear as I tried to find official Olympics trademarks.

"But surely," I told myself, "someone must own that interconnected rings symbol or everyone would put all over everything."

Yeah, they do. And apparently it's everyone who has ever participated in an Olympic Games. I truly did not expect to be so overwhelmed by such a seemingly simple search premise. I think it is due to one culprit in particular, too.

Anyway, here are some Olympic symbols and their owners:  

The above-mentioned culprit! Canada's Canadian Olympic Committee went WAY overboard registering  their marks... in Canada. I did not find that they had registered so many in any other jurisdiction. Also, for all of the registrations that I pulled, they claimed every single class. Seriously! Nice classes 1-45 completely. Either CIPO was feeling lenient towards the Canadian Olympic Committee or they have pretty open ideas about classes of goods and services. 

ALL THE CLASSES (except it can only show 33; note the comma)

This particular mark is one of their committee's symbols. It was registered in 1975, and according to the WIPO Global Brand Database, is still live. 

The Canadian Olympic Association logo, since 1975

The United States Olympic and Paralympic Committee has many registrations in the USPTO database, but it doesn't have them like Canada. This one is for branding some random souvenirs. Still, it's likely just one of many similar logos that is used for multiple purposes and you've likely seen this past week.

Team USA!

I accidentally closed the window with this information about this registered mark, and given how overwhelmed I've felt about this search, thought I would never find it again. But allow me to introduce you to the image search function in the Global Brand Database sometime.

Both color and grayscale, just in case

It's for the British Olympic Association and covers a handful of expected and (probably also) souvenir-related classes. It doesn't seem to be the main symbology, though; that's a lion or lion head. 

The British were not my first guess when I saw this

The Qatar Olympic Committee is another that has worked hard to cover all potential infringement bases. They've registered this symbol in more countries than you might guess. I did not know the name of the IP office in Zimbabwe before this afternoon, but now I do. In this particular case, the image and the related record is from Tunisia, another IP office I was previously unfamiliar with.

I like how it's the ring colors but people

Finally, here is the recognizable international Olympic Games symbol, from the International Olympic Committee (Comité International Olympique) based in Switzerland. The specific registration is with the EPO.

International registration for international committees!

Enjoy the Olympics while they are still taking place, and we'll revisit this IP again in a few years.

Secret Agent: IP Never Dies

Recently, as I was running an errand before work, I happened to notice an establishment called the 007 Barbershop.

Now, aside from thinking about some of the silliness that is related to giving men's salons names that evoke a certain kind of "manliness", I started to think about... the IP. Yes, it is everywhere, did you not see that blog post/dare? The barbershop in question was using a logo that was purposefully similar to the James Bond 007 logo. While slight alterations were made--scissors instead of a gun, etc.--it was still clearly styled after another highly recognizable IP.

This got me thinking. Would it be possible to register this logo or business name as a trademark at any level? How similar are they? Would the contexts be dissimilar enough to successfully claim distinctiveness and avoid likelihood of confusion?

It's hard to say; let's investigate some IP and see what we might determine. I happen to already know a fair bit about James Bone-franchise related IP (what did I say about the occupational hazard?), but here's a brief review of certain properties and ownership for those who may not have that familiarity. 

First of all, most of the James Bond (regarding the British spy originally conceived of and written by Ian Fleming) now belongs to Danjaq S.A., a Swiss corporation (it has holdings in the US as Danjaq LLC). [I am uncertain how the rights have migrated from probably copyrights for novels belonging to Fleming and (likely) his publishers to a Swiss corporation, but it happened, and that's not our focus today.]

Many of the trademark registrations that are related to the James Bond franchise are therefore international extensions from original Swiss filings. And, apparently, the Swiss are much happier to let corporations clump together many different classes of goods and services under one registration. 

One of the registered marks for a James Bond concept

Among the most recognizable properties is the 007 logo, with and without words, each separately registered. Both have a slew of associated goods AND services (really! they're technically both a service mark and trademark at once), including not only the obvious movie entertainment. The logo without words, registration no. 1739332, includes classes 003, 009, 014, 016, 018, 025, 028, 041. The same eight classes are included for the logo including words (James Bond), registration no. 1737876.

Logo with words, in case you forgot who 007 is

Of course, this is just one set of manifestations of the 007 logo. Several more are registered with a similar number of goods and classes. 

Familiar with the gun barrel sequence? If you've been exposed to any James Bond, you likely are. While I didn't find any motion picture marks, as in registrations for the exact sequence that precedes all Bond movies, I did find a couple registrations for the image of the gun barrel sans blood and Bond. Among them are registration nos. 4671991 and 4190845, which both claim motion picture/DVD/movie recordings as either entertainment or product, and one claims a couple other properties like shirts and fragrances. Again, there are more registrations for that same symbol.

Yep, this is trademarked

Quite a few registrations are listed for titles of Bond films. "But Hannah," I know you're saying, "aren't these movies productions from United Artists? Wouldn't they own the rights?" And you are partially correct--UA is the production company behind the James Bond movies. You may also know that I frequently say IP is very complex and one property may seem to be more than one type. This is especially true when it comes to mega-billion, long-running franchises like James Bond. UA's properties mostly reside in the realm of copyright. Without getting too far into that--really, this is about evaluating the ability to register the name of a salon I saw, not just nerding out over James Bond IP!--suffice it to say that a basic search revealed both Danjaq and UA on a LOT of Bond copyrights. 

A movie title mark, registration no. 3686854

The movie title trademarks are for goods and services that are marketed under those names, not for the movies themselves. So quite a few toys, items of apparel, etc. are all marketed using the titles as a mark, not the creative work.

A lot of familiar phrases and concepts are registered, too. For example, "shaken, not stirred" appears a few times.

This one is dead, though

I also was pleased to find the James Bond theme music registered, no. 4065012. I do so enjoy sensory marks! Visit the link, and the click on the Documents tag, and select any item that is an MP4 to view a movie clip, theatrical trailer, or DVD intro scene, all complete with the theme music. I've watched a few today.

Given what I reviewed, I would be reluctant to register the barbershop's name and logo. While I certainly would not confuse it as being one of Danjaq's holdings, that's in no small part because I have so much familiarity with the relevant IP. Might someone else mistake it? Or would Danjaq just take them to court? It's hard to say, but with some of the Danjaq registrations including beauty/styling products, there just too much similarity for it to easily pass.

 

BONUS! For everyone who follows the Instagram Library Cat, here's a fact that isn't shared in those posts: her name is Jimmi Bond, because she wears a tuxedo just like the British secret agent. And I was also originally informed she was a male cat, and called her James Bond for a few minutes before deciding that such a pathetic little scrap of kitten was more of a Jimmy Bond... and then changed the spelling when I got close enough to see she was female.

The famous Library Cat, Jimmi Bond

Pocky Day IP

Happy Pocky Day! 

Yes, evidently Nov. 11th is not only Armistice Day or Veteran's Day, it is also Pocky Day®. (If you want to learn about patents related to Armistice or Veteran's Day, just visit the current Kelley Center display, featuring rotating holiday patents.) The day dedicated to celebrating the snack was created in 1999 by Ezaki Glico, the company that owns and produces Pocky.

First released in 1966, Pocky is a Japanese snack food comprised of a small biscuit stick coated in flavored icing. Flavors include chocolate, vanilla, and matcha, among many more, some of which are unusual or regionally specific. The basic chocolate variety is readily found in America; Houstonians can usually obtain a box from the international aisle in an HEB, Kroger, or other sizable corporate grocery.

Ezaki Glico owns quite a bit of Pocky-related intellectual property. Here's a list of some highlights:

1. Pocky packaging patent: Box, US Design 520,869. It's a very short patent, just the two pages below.
   
   
   

    
   
    
   
2. Patent for the Pocky snack itself:  Stick-shaped Snack And Method For Producing The Same, US Utility 8,778,428. This slightly longer patent is for the process to create a Pocky biscuit stick. Visit this link to a PDF of the document.
   
   

   

   The perfect thin biscuits

   
   
3. Patented device to control stick length: Device For Trimming Too Long Sticks And For Eliminating Those Too Short, US Utility 5,307,940. Before Pocky was perfected, Ezaki Glico had to invent something that controlled the length of the biscuits. It's mostly technical; see the patent here.
   
4. Inventing iconic cartons: Carton With Two Covers, US Utility 3,835,989. In 1974, Ezaki Glico obtained the patent for their cartons that haven't changed much since. The most identifiable figure from the patent is below; find the documents in full here.

   

   Clever carton creation
   

   
   Unfortunately, searching pre-1970 patents for assignees is difficult in the USPTO's official database and search tool, and my efforts produced nothing that resembled Pocky prior to 1974.
   
   
   
5. Pocky®: US trademark registration no. 1249460. The name Pocky, as applied to the specific type of snack or confectionery good described, was registered with the USPTO in August 1983.

   

   Specimen photo provided for registration
   

6. Pocky Day®: US trademark registration no. 5230070; international registration no. 1331914. In 2017, Ezaki Glico received the below trademark from the USPTO; the international mark was registered slightly earlier, in July 2016.

   

   Registration symbol required
   

   
   
7. Pocky Ultra Slim® and image below: US trademark registration no. 4773595. This mark registion includes both the words "Pocky Ultra Slim" and the distinct appearance of the graphic, which includes colors, wording, font, placement of elements, Pocky snacks, etc. Of course, no exclusive claim is made to the phrase "ultra slim" or that same expressed in characters that transliterate to "Go-Ku-Bo-So". 

   

   Registered image and words

There are many more patents, trademarks, and probably trade secrets associated with Pocky. if you want to learn more about how to find the marks or patents, just let us know at the PTRC!

Federal Register -- International Trademark Classification Changes

Federal Register
Vol. 85, No. 213
Tuesday, November 3, 2020

Patent and Trademark Office

RULES

International Trademark Classification Changes,

69501–69504 [2020–22353]                    [TEXT]  [PDF]

International Trademark Classification Changes

The Federal Register Volume 82, Number 230 (Friday, December 1, 2017), [Pages 56887-56890] presents the following final rule:

SUMMARY: The United States Patent and Trademark Office (USPTO) issues a final rule to incorporate classification changes adopted by the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks (Nice
Agreement). These changes are effective January 1, 2018, and are listed in the International Classification of Goods and Services for the Purposes of the Registration of Marks (11th ed., ver. 2018), which is published by the World Intellectual Property Organization (WIPO).

DATES: This rule is effective on January 1, 2018.

FOR FURTHER INFORMATION CONTACT: Catherine Cain, Office of the Deputy Commissioner for Trademark Examination Policy, at (571) 272-8946 or TMFRNotices@uspto.gov.

For more information please visit: https://www.govinfo.gov/content/pkg/FR-2017-12-01/html/2017-25880.htm