Duncan Bucknell, over at the IP ThinkTank, discusses FIFA’s response to the women arrested after wearing orange miniskirts bearing the Bavaria beer company logo to a recent match. Duncan posits that FIFA was not on good legal footing but has sold a lot of beer for their sponsor’s competitor.

Bavarian Orange Miniskirt Girls

Barbara Castelein and Mirthe Nieuwpoort were charged with violating South Africa’s Merchandise Marks Act of 1941 and two sections of the Special Measures Regulation – the same law under which illegal ticket scalpers are prosecuted.

They were among a group of more than 30 Dutch women who attended last week’s Netherlands-Denmark game at the Soccer City stadium wearing orange mini-dresses paid for by brewing company Bavaria. Johannesburg Magistrate’s Court dropped the charges against on Tuesday. The women, who could have faced up to six months in prison.

“They’ve created what could turn out to be an international incident from something that could have been handled adroitly and strategically and turned around.”

Was this in fact Ambush Marketing? The South African Merchandise Marks Act states in sections 15 and 15A that the Minister may prohibit the use of any mark, word, letter or figure, or any arrangement or combination thereof in connection with any event.

FIFA officials took issue with a (very) small “Bavaria” tag on the side of the dresses, which they said infringed the rights of official partners and sponsors who paid millions of dollars to advertise exclusively at World Cup venues.  The dresses had been available free with a pack of beer at gas stations in Holland.  This raises the question:  How visible must the mark be in order to violate the Act?

Furthermore, the Gauteng Provincial Gazette, which defines Ambush Marketing, states:

…marketing, promotional advertising or public relations in words, sound or any other form, directly or indirectly relating to the Competition, and which claims or implies an association with the Competition and / or capitalises or is intended to capitalise on an association with or gains or is intended to gain a promotional benefit from it to the prejudice of any sponsor of, the Competition but which is undertaken by a person which has not been granted the right to promote an association with the Competition by FIFA and whose aforesaid activity has not been authorised by FIFA Competition.

The vague provisions of “directly or indirectly relating to the Competition, and which claims or implies an association with the Competition” would seem to include just about every article of clothing with a visible logo.

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*A special thanks to Duncan and the IP Think Tank team for inviting me to join them on the IP Think Tank podcast 27 May 2010, covering Shanghai woes, Indian oppositions and US patent extensions.

In this podcast, I joined Duncan Bucknell, Vandana Mamidanna, and Weijiang Si for an informative and entertaining discussion about:

  • New appeal routes for Indian Oppositions;
  • Patent Term Extensions in the US;
  • Government IP woes at the Shanghai World Expo; and
  • Independent experts in China and the United States.

Thanks for letting me be on the show!

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