Here’s a little intellectual property story you’ve never heard of and will care about even less after reading this post. But since this sorry-arse excuse for an IP controversy, which does after all involve a multinational company and a famous historical/cultural figure, has been picked up (so far) by Global Times, China Daily and Shanghai Daily, I thought it was worth a Friday post.
By the way, not only are these media nimrods reporting on a lame story, but those responsible for headline writing (as usual) deserve 40 lashes with a wet noodle.
Shanghai Daily: “Trouble brewing for Starbucks” (the pun police are apparently off on their Summer holiday)
China Daily: “Judge has a case against Starbucks” (judge has been dead for 1,000 years, so I don’t think he has a case for anything)
We’ll do this fast and furious, cut and paste style from the Shanghai Daily‘s writeup:
Starbucks ran into trouble after selling souvenir coffee mugs and bottles featuring an image of the 11th-century judge Bao Zheng when it opened its first branch in Hefei, capital of central China’s Anhui Province … and Bao’s hometown.
Pretty good localisation, actually. The 90 RMB mug is apparently selling quite well. Also FYI, the main man here is Bao Zheng, aka Bao Gong, a judge who lived in the Song Dynasty circa 1,000.
“Bao Zheng would surely feel angry if he knew that his face was on mugs being sold for profit,” Bao Xun’an, a 36th-generation descendent of Bao, said yesterday.
Right. Because you know what I guy that lived a gazillion years ago would have thought about having his face on a coffee mug. Also, and I know this might piss some people off, but I think anyone’s moral rights regarding an ancestor need some sort of statute of limitations. A few generations, fine. But 36? Seems a bit attenuated.
Bao Xun’an, who heads an association that studies and promotes Bao Gong’s spirit of integrity, said his ancestor had passed down a warning to later generations never to earn “ill-gotten wealth.”
He claimed the mug was worth 10 yuan at most, but was being sold at nine times that price with his ancestor’s face on it.
Ah. So he’s upset with Starbucks making money off it, and he just so happens to run an association that is also in the “Bao Gong” biz. Interesting. Moreover, for someone who’s all about ill-gotten wealth, he seems to know about trademarks quite well, correctly pointing out that the value of the mug without branding was quite low. He’d probably disagree with the suggestion that the Starbucks logo, in addition to that of Bao Gong, was responsible for the markup. Then again, he might be biased.
“Moreover, his face is not right and he looks like a foreigner,” said Bao.
Now he’s an art critic? Nice jab there with “foreigner” though. Probably trying to work the local folks preemptively, in case he can get a judge some day to listen to this groundless dispute.
Now, it is possible that the likeness on the mug sucks. For example, Bao Gong is usually depicted with a dark face and a scar. But even if Starbucks did a crappy job, this doesn’t give this guy any legal rights over distribution of these mugs.
He said Starbucks’ marketing strategy was disrespectful and could even be a violation of intellectual property rights, because his association had a patent for “Bao Zheng” logos.
Would be interesting to know just what sort of IP we’re dealing with here. Wouldn’t make the case stronger, but I’d like to know. When we talk about logos, there are options. Trademark, copyright and even design patent. Since journalists usually have no clue what the differences are between these different types of IP, though, I’m not at all confident that we are in fact dealing with a design patent.
By the way, I can tell you right now that there is no patent for “Bao Zheng logos.” If the association has one, it relates to a specific (i.e. their own) Bao Zheng logo only.
“If the company uses a proper image of Bao Zheng’s face on some free souvenirs to promote Bao’s spirit, I can authorise them to use the face free,” he said.
Nice of him. Of course, Starbucks can do whatever it wants without asking his permission, provided of course that their logo is not similar or identical to that of this association. Given the fact that Mr. Bao criticised the artwork, I would guess that we’re not dealing with a similar logo. Kind of torpedoes Bao’s case. Oops.
You can’t protect the general likeness of an historical figure. Moreover, even specific works (e.g. paintings, sculptures) are subject to copyright law, which sets time limits for protection. And even if copyright ran forever, I don’t think this guy could prove that he’s the inheritor of the Bao Zheng estate.
This guy/group owns a specific logo. That’s it. As such, he can prevent others from using that specific logo or something similar. End of story.
Starbucks’ China IP lawyer can certainly rest easy tonight.
[Disclaimer: While I stand by my informal legal opinion above, I don’t discount the possibility that some local judge or administrative official might get involved and make trouble for Starbucks. I wouldn’t expect it, but who knows, this guy might have some political juice in Hefei.]
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