Hi, I need help with a trademark problem - Moncler

transalpino · Post by **transalpino** » Wed Dec 12, 2012 5:29 pm

Hi, I'm new here, and I must say, what a very useful site.

I import clothing from China, we have imported some coats and on the inside is a cartoon wash label which customs have said is infringing monclers copyright, but I cant find any proof of this on the internet.

I have looked on the patents office website and cannot find a classification for this cartoon, can anyone point me in the right direction to find what I'm looking for?
Cheers in advance, Brendan

AndyJ · Post by **AndyJ** » Wed Dec 12, 2012 7:23 pm

Hi Brendon,
I think we need to clarify the difference between copyright and trade marks. Copyright (in this case in a logo or cartoon) is created automatically when an artistic work is made and doesn't need to be registered. Trade marks normally need to be registered in order to be effectively enforced. It is possible to have an unregistered trade mark but they are notoriously difficult to enforce through the courts.
So if the HMRC say that the Moncler logo is covered by copyright, you won't find it registered anywhere, and presumably HMRC are acting on a complaint from the copyright owners.
Does the logo look something like this:

.
This is one of a number of registered trade marks owned by Moncler. However even if the symbol is a different one, it is still likely to attract copyright.
If it just the label which appears to be the infringing part, you may be able to arrange to have the labels cut out and the goods can then be released to you. Of course it may be that Moncler are actually alleging that the garments themselves are copies of one of their designs and are just using the claim of copyright infringement as an easy way of getting the goods impounded.
HMRC will be acting under the authority of section 111 of the Copyright Designs and Patents Act 1988, although if the logo is claimed as an artistic work, it is not actually covered by section 111 which only applies to literary, dramatic or musical works together with sound recordings and films, so you may want to clarify this with HMRC.

transalpino · Post by **transalpino** » Wed Dec 12, 2012 10:06 pm

Thanks for the swift reply Andy, I tried to post the cartoon on here mate but as I'm a newbie I wasnt allowed, if you google moncler cartoon you should see the label I mean, its actually a comic strip explaining the washing instructions in french, nowhere on our cartoon/washing label is the word 'moncler'

AndyJ · Post by **AndyJ** » Thu Dec 13, 2012 7:16 am

Hi transalpino,
Thanks for the additional information. I assume this is the cartoon:

. If it is, then most definitely it will be classed as an artistic work and so be protected by copyright.
Incidentally I have posted the image here under the section 30 provision for criticism, review and news reporting and I fully acknowledge that copyright in this cartoon is owned by Moncler.

transalpino · Post by **transalpino** » Thu Dec 13, 2012 8:09 am

Yes, thats the one mate.
Would it have a classification Andy and if so, any idea what it would be?
Brendan

AndyJ · Post by **AndyJ** » Thu Dec 13, 2012 10:32 am

Hi transalpino,
I don't think the cartoon strip is claimed to be a trade mark, and it is only trade marks which are registered by classification. It appears to be a straight forward artistic work just like many other cartoons. On that basis it gets copyright protection by virtue of it having been created by a human artist and doesn't need to be registered. We have to assume that if Moncler commissioned the cartoon, as seems likely, they do in fact now own the copyright in it because the artist assigned the copyright to them as part of the commission, or because the artist was a full-time employee of the company. If this is so then Moncler should have no difficulty in establishing that they are the owner of the copyright and therefore can bring a claim of infringement if some other manufacturer has produced these labels without authority.
However as I mentioned previously Section 111 of the CDPA does not give HMRC any powers to seize copyright artistic works, so unless Moncler are claiming some other infringement I suspect that HMRC could be challenged over withholding these goods purely under Section 111. You might wish the seek clarification from HMRC on this.

transalpino · Post by **transalpino** » Thu Dec 13, 2012 9:31 pm

Thanks Andy, you've been a great help.