# Copyright



## Hooked (17/9/17)

@Silver mentioned that he had finally tried a juice called Ferrero Rocher (as in the chocolates), made and given to him by @yuganp. Makes me wonder about copyright. I'm sure it doesn't apply in this case, since said juice is a home-brew and it isn't on the market. Thus, the label can be taken as just an informative label to describe the flavour, such as a label one might put on a spice jar in the kitchen.

I'm sure copyright must be an issue though, if a mixer makes something that tastes like a product e.g. I have a bottle of Bar None (The Untitled Juice Co). Immediately one thinks of Bar One and indeed, that is obviously what it is. In case there's any doubt, the flavour description on the bottle reads, "Your favourite caramel nougat chocolate bar..." Say no more... happens to be my favourite chocolate (shhhhh don't tell my sugar levels - they might rise up with great concern). 

How does copyright work then? Bar One and Bar None are so similar. If it's legal then one could also have a Kit-Kate!

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## Silver (17/9/17)

Hooked said:


> @Silver mentioned that he had finally tried a juice called Ferrero Rocher (as in the chocolates), made and given to him by @yuganp. Makes me wonder about copyright. I'm sure it doesn't apply in this case, since said juice is a home-brew and it isn't on the market. Thus, the label can be taken as just an informative label to describe the flavour, such as a label one might put on a spice jar in the kitchen.
> 
> I'm sure copyright must be an issue though, if a mixer makes something that tastes like a product e.g. I have a bottle of Bar None (The Untitled Juice Co). Immediately one thinks of Bar One and indeed, that is obviously what it is. In case there's any doubt, the flavour description on the bottle reads, "Your favourite caramel nougat chocolate bar..." Say no more... happens to be my favourite chocolate (shhhhh don't tell my sugar levels - they might rise up with great concern).
> 
> How does copyright work then? Bar One and Bar None are so similar. If it's legal then one could also have a Kit-Kate!



Good point @Hooked

That juice that @yuganp made for me was his own DIY creation. I think he only put that name on the label so i knew which one it was (because i asked for it before). To my knowledge he doesnt sell it though.

On the point of using other brands or their names on juice bottles for sale, I have seen this occasionally. While I am not sure of the legalities, it does pain me quite a bit when I see some people trying to make a profit out of someone else's established brand.

It is a pity when this happens though because we have such amazing creative talent here in SA.

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## shaunnadan (17/9/17)

very interesting topic!

so just to throw a few things out there. *Copyright infringement* is the unauthorized use of works under copyright. What we should be actually referring to is *Trademark Infringement.*

A trademark is a brand. A trademark or service mark includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services. 

What this includes is the Brand Recognition of a trademark.

Now there are many exceptions of where one can use a trademark, but if used for any commercial purposes than express permission needs to be granted by the trademark owner.

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## Rob Fisher (17/9/17)

I can't be drawn into this discussion because I think everyone is well aware of my stand point on Intellectual Property Theft! As regards Juice I steer well clear of these IP Theft packaging juices.

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## Alex (17/9/17)

I'm no expert in copyright law, but I imagine that any product which relies on an association with a well known/established brand would fall foul of copyright law. And the company involved would be fully entitled to seek legal recompense.

Reactions: Agree 5


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## Hooked (17/9/17)

Silver said:


> Good point @Hooked
> 
> That juice that @yuganp made for me was his own DIY creation. I think he only put that name on the label so i knew which one it was (because i asked for it before). To my knowledge he doesnt sell it though.
> 
> ...


Yes, it's obvious that his label is not a real label - if it is perhaps he needs to call in an advertising agency lol. 

I quite agree with you about people stealing well-known names and it's so unnecessary. Language is a game - play fair and play creatively.

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## Alex (17/9/17)

Just to add to this topic, and something that immediately comes to mind is the "Coca-Cola" brand, everyone knows that there are probably hundreds of imitations of this iconic drink around the world. So if another company decides to make a similar cola drink and brands it "PEPSI" they would be okay in terms of the law. But the only reason we all recognize the "PEPSI" brand as being a coke alternative, is probably due to billions of dollars worth of advertising brand recognition.

I guess if someone wanted to make a "BAR-ONE" imitation, they could label it as anything, as long as it doesn't form a mental association with the "BAR-ONE" brand.

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## Hooked (17/9/17)

Alex said:


> Just to add to this topic, and something that immediately comes to mind is the "Coca-Cola" brand, everyone knows that there are probably hundreds of imitations of this iconic drink around the world. So if another company decides to make a similar cola drink and brands it "PEPSI" they would be okay in terms of the law. But the only reason we all recognize the "PEPSI" brand as being a coke alternative, is probably due to billions of dollars worth of advertising brand recognition.
> 
> I guess if someone wanted to make a "BAR-ONE" imitation, they could label it as anything, as long as it doesn't form a mental association with the "BAR-ONE" brand.



That's my point - Bar None certainly forms a mental association with Bar One. I should know - I salivate every time I vape it!!

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## RichJB (17/9/17)

Wrigley's just sued a juice manufacturer for using "Juicy Fruit". Unfortunately the vaping industry is very young and many company owners have little experience of business and don't understand what trademarks mean. For example, we had the Hellgate company making the Iron Maiden tank which not only infringed the trademark of the band's name, it even used the same (equally trademarked) font! These lessons will be learned in time. It's just part of any industry moving towards maturity.

Reactions: Agree 4 | Informative 1


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## Hooked (17/9/17)

shaunnadan said:


> very interesting topic!
> 
> so just to throw a few things out there. *Copyright infringement* is the unauthorized use of works under copyright. What we should be actually referring to is *Trademark Infringement.*
> 
> ...


 Thanks for your correction @shaunnadan - too many years of studying embedded a fear of 'infringement of copyright' into my brain!

From your definition of trademark, it would seem that Bar None is sliding down a very chocolaty slope indeed - unless they have permission to use the name. Bar None meets the criteria of "any word" does it not. Even more so is the Brand Recognition. Bar None immediately conjours up Bar One.

This area of Trademark is of particular interest to me at the moment, because I'm planning something (not juice!). Are you familiar with all the legalities of trademarks? If so, I would like to have a conversation with you, if you have the time and inclination.

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## Hooked (17/9/17)

RichJB said:


> Wrigley's just sued a juice manufacturer for using "Juicy Fruit". Unfortunately the vaping industry is very young and many company owners have little experience of business and don't understand what trademarks mean. For example, we had the Hellgate company making the Iron Maiden tank which not only infringed the trademark of the band's name, it even used the same (equally trademarked) font! These lessons will be learned in time. It's just part of any industry moving towards maturity.


Well now, here's some juicy (pun intended) gossip (gossip IS information lol - two sides of the same coin). Expensive lessons, that's for sure!

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## Kuhlkatz (18/9/17)

If you intend doing something that you think might infringe on some trademarks or copyrights, the best bet would be to seek out experts in that particular area to assist you. It would be a disaster to invest some love, time and money into something you think is worthwhile, only to have someone else rip out the carpet under your feet just after launching it, or later, when the going gets good.

Ask Samsung & Apple about their lawsuits and counter-suits on Patented and Copyrighted material. It ultimately cost both sides dearly in both litigation and fines based on revenue earned from just a similar design & User Interface layout based on the patented and copyrighted material in a host of products. The initial $400 million awarded to Apple was later overturned, and both companies lost some of the cases in the event, but to me it does not look like there was a clear winner either way.

My take on vaping related matters:
DIYers making their own renditions of a product is one thing. Juice labels making a similar flavor and using an original name and standard labelling like Aisle 7 -Nora's Dream instead of 'Fruit Loops' is also not a direct copy and would not necessarily infringe on anything.

Trying to benefit from it financially by commercially marketing and selling it, is another kettle of fish. Depending on the products, similar names like Bar One vs Bar None or Kit-Kat vs Kit-Kate might not go down well, especially if the products were also similar e.g. chocolates in this case. Juice names only, mmmm... I don't know if it would be worth their while beyond a cease and desist letter if the company is of the opinion that it is infringing on their trademarks. If they want to prove a point and make an example, they would likely take it further.
Similar names and easily identifiable established logos is a different matter, like my original Nikes:




Now think of something as original as an e-juice line that is 'based on' a relatively unknown cold drink brand, and clearly does not infringe any trademarks or copyrights like the logo style including the leaf and the font that no-one would ever recognize.









I think Fantasi is 100% creative and 100% original, and I'm sure The Coca-Cola Company would agree with me fully. It's not that they have spent the last 70 years or so trying to sell the stuff. What surprises me most about the above brand is that Coca-Cola has not slammed them with a lawsuit yet or actually tried wiping them off of the face of the earth.
They might have had some comms to this effect, as it seems that the labeling is changing or has changed ever so slightly :





It is my opinion that blatant rip-offs like this puts vaping in very a bad light - us vapers, and the rest of the industry, not just the juice manufacturer. It is a clear copy and yet it sells like hotcakes. Does it say that people buying it condones the blatant disregard for the trademark, and from the manufacturers perspective it is thus OK to continue down this avenue ? Sure looks like it.
It seems to be quite common in this industry where it is relatively easy to rip off someone else's current or older drink, sweet or gum profile AND then have the audacity to try and pave the way to fame (read a quick buck) by using exact or similar labeling.

Other people might be cool with this, but I do not agree with it at all and personally refuse to even to try it, never mind buy it. There is more than enough other juices and original profiles from creative mixologists and the DIY realm that float my boat.

Reactions: Like 1 | Agree 4 | Informative 1


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## RenaldoRheeder (18/9/17)

So what would the situation be in the following case:

Xyz Juice - bar one flavour?


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## shaunnadan (18/9/17)

Hooked said:


> Are you familiar with all the legalities of trademarks? If so, I would like to have a conversation with you, if you have the time and inclination.



by no means can i call myself familiar with any of the legalities regarding trademarks. not too long ago I was involved in the process of taking out a patent and was briefed on the interesting world of infringements.

if you are considering starting up something then i highly recommend the services of a professional.

Reactions: Agree 1


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## Hooked (18/9/17)

Kuhlkatz said:


> If you intend doing something that you think might infringe on some trademarks or copyrights, the best bet would be to seek out experts in that particular area to assist you. It would be a disaster to invest some love, time and money into something you think is worthwhile, only to have someone else rip out the carpet under your feet just after launching it, or later, when the going gets good.
> 
> Ask Samsung & Apple about their lawsuits and counter-suits on Patented and Copyrighted material. It ultimately cost both sides dearly in both litigation and fines based on revenue earned from just a similar design & User Interface layout based on the patented and copyrighted material in a host of products. The initial $400 million awarded to Apple was later overturned, and both companies lost some of the cases in the event, but to me it does not look like there was a clear winner either way.
> 
> ...


 
I also think it's wrong to imitate deliberately as in the old Fantasi bottles. There are ALWAYS other creative ways of naming and labelling, as you said. The E Juice Co here in Cape Town has got it nailed. He makes a Turkish Delight which tastes EXACTLY like the right thing, but nowhere on the bottle do you see the words Turkish Delight. Instead, it's called TD. He uses abbreviations for all his juices!


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## Hooked (18/9/17)

RenaldoRheeder said:


> So what would the situation be in the following case:
> 
> Xyz Juice - bar one flavour?
> 
> ...


XYD Juice - yes, but one must still be careful with the flavour description. The Bar None description is, "Your favourite caramel nougat chocolate bar" I guess that pushing one's luck a bit! But there would be no harm in saying,"A caramel nougat chocolate delight", just as an example.

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## RichJB (18/9/17)

Another trademark infringement. It's interesting to note that trademarks don't only apply to names and logos, even fonts can lead to trademark suits - as happened in this case. Look at the similarity of the fonts used by the the music star and the vape company. There is clear intent to imply that the brands are related in some way.

I think this is also an inevitability in a nascent industry dominated by small companies. Capitalist systems are generally dominated by larger companies and now we see why. In industry, you need a legal department, an ad agency, a PR/Marketing company, brand specialists. Vaping companies don't have these resources. If they want a logo, they often get a mate to design it for them cheaply. So there is a temptation to take an existing logo or just adapt it slightly. I once worked on a brand design for a parastatal. It cost them over a million Rand. You can't do these things properly on the cheap.

And then we get to PR. Sigelei get annoyed with Daniel DJLsb because he dissed their mod. So they follow him around on social media, making threats, saying they're going to shut him down, etc. Word gets out and Sigelei get inundated with abusive comments on their FB page. So they disallow all comments. It is amateur hour. You will never, ever, ever see big tobacco or big pharma do that, confronting customers in public and threatening them. It is business suicide. And the same with all these crass juice names coming out. No professional ad agency will ever pitch their client a product range with F*ck or Sh!t in the name. These guys have been doing marketing for a while, it's their job, they know how mainstream consumer society works.

All in all, it makes the vaping industry look very amateurish. But one must expect that when small companies are undertaking jobs which larger companies delegate to seasoned professionals and specialists. So it's more a reflection of the small scale rather than anything inherently bad about the vaping industry. In any industry, small companies trying to do things on their own will make these sort of mistakes. Hopefully as the industry scales up and matures, this sort of thing will become more rare.

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## Hooked (18/9/17)

RichJB said:


> Another trademark infringement. It's interesting to note that trademarks don't only apply to names and logos, even fonts can lead to trademark suits - as happened in this case. Look at the similarity of the fonts used by the the music star and the vape company. There is clear intent to imply that the brands are related in some way.
> 
> I think this is also an inevitability in a nascent industry dominated by small companies. Capitalist systems are generally dominated by larger companies and now we see why. In industry, you need a legal department, an ad agency, a PR/Marketing company, brand specialists. Vaping companies don't have these resources. If they want a logo, they often get a mate to design it for them cheaply. So there is a temptation to take an existing logo or just adapt it slightly. I once worked on a brand design for a parastatal. It cost them over a million Rand. You can't do these things properly on the cheap.
> 
> ...



Unfortunately if these small companies do get professionals in for branding and PR we, the consumer, will pay the price!


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## RichJB (18/9/17)

Yes but this is why consumerism tends towards a handful of huge companies rather than a plethora of small ones. How many brands of tomato sauce or mayonnaise can you find in your Pick n Pay? Five, six, maybe? Now how many juice brands can you buy? A thousand? The giants like Tiger Milling bring out dozens, sometimes hundreds of products. So all those ancillary costs are spread among their product portfolio. What it means is that a giant can pump an awful lot more expertise and money into marketing a product than a tiny rival with only half-a-dozen employees. They can afford mainstream advertising, they can afford to command shelf space in chainstores. They can afford to shut down rivals with endless lawsuits if they have to. 

If you want to launch your own ketchup brand and you want to go up against All Gold and Heinz, good luck. So over time, they get the market share and they take over. The rich get richer and the poor get poorer type of thing. It sucks but to twist a Winston Churchill quote somewhat "Free market consumerism is the worst system ever - except for all the other systems that have been tried."

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## Hooked (18/9/17)

RichJB said:


> Yes but this is why consumerism tends towards a handful of huge companies rather than a plethora of small ones. How many brands of tomato sauce or mayonnaise can you find in your Pick n Pay? Five, six, maybe? Now how many juice brands can you buy? A thousand? The giants like Tiger Milling bring out dozens, sometimes hundreds of products. So all those ancillary costs are spread among their product portfolio. What it means is that a giant can pump an awful lot more expertise and money into marketing a product than a tiny rival with only half-a-dozen employees. They can afford mainstream advertising, they can afford to command shelf space in chainstores. They can afford to shut down rivals with endless lawsuits if they have to.
> 
> If you want to launch your own ketchup brand and you want to go up against All Gold and Heinz, good luck. So over time, they get the market share and they take over. The rich get richer and the poor get poorer type of thing. It sucks but to twist a Winston Churchill quote somewhat "Free market consumerism is the worst system ever - except for all the other systems that have been tried."


Yep, money talks loud and clear!


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