Trademark infringement – when is it welcome?

July 10, 2012 - PRLog -- The fashion label diana-ware has a distinctive mark to provide protection as the company diana-ware Wholesale Fashion grows its business and invests in its brand.  Amongst many other things the most notable characteristic is a heart shaped icon replacing the dot of the ‘i’ in diana-ware. The owners were shocked and surprised to see the exact label on a particular garment which was designed by diana-ware.  “I did not know whether to be annoyed or flattered”, says Diana, Principal of diana-ware.   Concerned that the mark may default to the Public Domain and so lose any value as a trademark, research (eg Answers^TM) informs the following general advice on trademark:

“If it was NEVER used then it was never a trademark and lapsed immediately. If was used and then no longer used, then the amount of time to find it has lapsed may depend upon how long it would take for the consumers to forget who originally owned it.”

Walking through the streets and market stalls that abound in and around Bangkok and seeing Gucci, Prada, Guess, Billabong and Nike to name a few, openly for sale at a fraction of the prices found in the adjoining department stores.  You would be forgiven if you formed the view that there is no trademark protection in Thailand.

However, Thailand is a member of the World Trade Organization and as such is obligated to enact laws to protect intellectual property generally and trademark specifically.  To this end an Act was approved by the Thai Parliament and published in the Royal Thai Gazette on April 1, 2000 and became fully effective on June 30, 2000. The new Act is referred to as the Trademarks Act B.E. 2534 (1991) as amended by the Trademarks Act (No.2) of B.E. 2543 (2000).

The flagrant breaches that abound in the many, many market stalls merely speak of the monumental task of enforcement.  

One might wonder why a small company such as diana-wareshould be the butt of trademark infringement.  One has to assume there is a connection with the unusual and distinctive dress designed by diana-ware.  A press release by Newsmaker describing the dress in (http://www.newsmaker.com.au/news/17364) reads:

“Inspired by Gary Connery’s historic flight in May this year, jumping from an aircraft to land safely wearing his wingsuit, the diana-ware wing dress mimics the aeronautic style of his wingsuit. Shaped with pinned sleeves to simulate wings, the dress flows over the fuller figure in a streamlined look. The special material used does not cling but flows sensuously over the curves to flatten kg’s off your look.

Comments like “you have lost weight” are characteristic. A new blend of Cotton and Spandex, Sappenet is the secret to the smooth fit that reduces the unwanted highlighting often found with clinging jerseys.”

Instead of being annoyed, Diana chose to be flattered, responding to the old saying: “Imitation is the sincerest form of flattery”.  The small risk of the trademark falling into the public domain was despatched by a very friendly admonishing reminder as to who owns the trademark in a sort-of no-fee licensing arrangement sealed with a handshake.
http://www.youtube.com/watch?v=ZQyt1oDDp-E