by Jeremy M. Ben-David, Founder, Managing Partner, JMB Davis Ben-David

 

Ms. Lauren Indvik, Fashion Editor
Mr. Chan Ho-him, Hong Kong Reporter
The Financial Times Limited
Bracken House
1 Friday Street
London
UNITED KINGDOM
EC4M9BT

 

Dear Ms. Indvik and Mr. Ho-him,

Thank you for your article of July 19, 2022 in which you reported the wonderful trademark victory in China for the luxury ladies shoe manufacturer Manolo Blahnik. By now, I am sure that all will have read your report, or other similar reports by your colleagues at the BBC, the Guardian and so on. 

As I am sure you intended to say, China has one of the youngest IP systems in the World, and since the milestone Gatt-TRIPS Agreement concluded in 1994, it has worked tirelessly to become an upstanding member of the international intellectual property community, becoming the world leader in both the number of cases (patents, trademarks and designs) applied for and registered, as well as one of the only countries with a specialist IP Court System.  Of course, laws vary from country to country, and with regard to trademarks, China had to decide whether to have a first-to-file system, or one which is based on a first-to-use system. Both systems are legitimate and have their advantages and disadvantages. Suffice it to say that many countries have a first-to-file system, among them China. 

However, you may have added that China is in good company. You didn’t list the other countries having a first to file trademark system, but had you done so, I am sure that you would have cited some of those listed on the Corsearch® website, which include Iran, Nigeria, Russian Federation, Qatar, Syria and Venezuela, among others. 

If that partial list isn’t too impressive, don’t worry. The group also includes many jurisdictions whose MORAL credentials are impeccable, including France, Germany and the European Union. I should also point out that this list includes the FT’s home country, the United Kingdom. It clearly is therefore not such a bad system, and while its merits may be open to debate, it is  perfectly legitimate, and nothing to be worried about, per se.

Now, I know that the Financial Times is familiar with trademarks and their importance. I know this because I performed a search on the USPTO trademark database, and was delighted to see at least 66 names, phrases and slogans that the FT has registered or at least applied for over the years. And that is just in the US. As I was perusing the impressive list of 66, I came across a fairly recent registration, number 6062287, for the mark “MORAL MONEY”. I admit to being intrigued by such a mark. I understand why “money” is connected to the Financial Times. I do. 

But how would they use a mark containing such a powerful and demanding term as MORAL? While I have noted the existence of the FT Moral Money Forum, surely being in possession of such a mark implies that FT reports meet the high moral bar implied by that very trademark(!)

Or maybe I am expecting too much.

It was then that I went back to an element that I had noticed in your report about Manolo Blahnik. To be honest, all the reports that I had seen about this case seemed to be very similar to each other. Sure, words had been changed around here and there, but the elements of the story were the same. Even to the extent of stating that China has a first to file system and that they strengthened trademark legislation. From your article, it’s unclear what that strengthening was, but the BBC’s report, however, referred to the fact that the strengthening was aimed at preventing bad faith filings; and it was apparently this amendment, enacted in 2019 (when the FT filed its trademark application for MORAL MONEY) that enabled the court in China to cancel the bad faith filing which had prevented Manolo Blahnik from using its name in China for about 20 years.

I’m curious as to why you did not mention this long overdue amendment  to prevent bad faith registration. It was sorely needed and should be celebrated. To me it clearly demonstrates that the Chinese authorities are working to improve their system on an ongoing basis (this being one example of many). So why wouldn’t you mention it?

What you did include however, was a sentence that I did not find in any other report of this case, presumably because it is irrelevant, at least in my opinion. After your paragraph stating that China has a first to file system, you then say, “Intellectual property theft has been a long-running source of tension between China and its trade partners, particularly the US”. This dramatic, accusatory statement has normally been used as a preferred alternative for “industrial espionage”, both by politicians and others who don’t particularly like the concept of the “property” aspect of Intellectual Property. And who don’t like China.

From a literary point of view, too, your statement re theft was a non sequitur. It did not fit in with the article at all, unless your aim was to convince readers that in some perverse way, the righting of a clear wrong in China’s young and ever evolving and ever developing IP system, was yet more evidence that in the court of international journalism, China is always and only ever guilty as charged.

Ms. Indvik and Mr. Ho-him, I can’t tell you how to do your job. I am not a journalist and it’s unlikely that I will ever be one. However, let me give you a small professional pointer from where I sit. In order to maintain trademark rights, a trademark owner must at least be able to show use of its trademark. 

The FT’s intentions with regard to the use of its mark MORAL MONEY notwithstanding, your above article seems to run counter to the requirement to be able to demonstrate use of the trademark, so you might wish to suggest to your employers that they drop it. 

Oh. And if you’re thinking of registering other trademarks, don’t try for “Honest Reporting”. I think it’s already taken.

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