July 7, 2012

Shhh, Don't Tell Apple About China's Iphone 5 Ice Cream!


By Stan Abrams  

I kid you not. ChinaHush has the goods on this bizarre intellectual property story:
Shenyang, Liaoning Province, the most popular ice cream among students here is this one called “iPhone 5” ice-cream.
The price of “iPhone 5” is 1 yuan.  Although the ice cream sells really well, the ice cream shop owner told the reporter that it tastes nothing special.

It is an ice cream but with the name of the most popular smart phone, is this not copyright infringement?  A staff member of Shenyang industrial and Commercial Bureau told the reporter, “A trademark registration is related to many areas, if Apple does not register the trademark “iPhone” in the food sector, then production of “iPhone 5” ice-cream is not copyright infringement.”


Aside from the annoying confusion there between “trademark” and “copyright,” does Apple have a case here? Sure they do, and that AIC official sounds like an idiot.

At least two possible causes of action: trademark and copyright (quite possibly unfair competition under a passing off theory as well, but that’s more complicated). I suspect that Apple does not have coverage with respect to food products, so normally an infringement case based on trademark would be a total loser. However, the iPhone (assuming Apple does have that registered here) is undoubtedly a famous trademark. Surely Apple would be successful in arguing that it deserves well-known trademark status? And some kind of dilution theory makes sense here.

How about copyright? The ice cream itself is in the exact shape of Apple’s logo, which again, I assume is protected here in China as a copyrighted work under the Berne Convention. Any argument that the apple shape is just coincidentally similar to Apple’s logo, normally an excellent defense, is going to be difficult considering the wrapper (see below).

If you can see the image I embedded with this post, note that the wrapper includes an exact image of the front face of an iPhone, and includes the name “iPhone 5,” along with a “TM” symbol! That’s serious chutzpah, folks, and it might also move things into unfair competition territory, which could even be a better theory than copyright or trademark alone.

I wonder, though, if customers become confused when partaking of an “Apple” product that comes in different fruit flavors. The one pictured is mango. Now that’s funky. And yes, there is also an apple flavor.

Would Apple ever sue these guys? Very doubtful, but a strongly-worded Cease and Desist Letter will probably go out at some point. I just hope that Apple doesn’t have to go to that bozo at AIC for help.


About The Author - Stan Abrams is a Beijing-based IP/IT lawyer and law professor with an M.A. from Johns Hopkins in International Relations, a J.D. from Boston College Law School, a B.A. from Pomona College, and writes at China Hearsay.  (EconMatters author archive here)


The views and opinions expressed herein are the author's own, and do not necessarily reflect those of EconMatters


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