Gail loses lawsuit against Zappanale
MS
A German music festival dedicated to the work of unconventional rock
musician Frank Zappa can continue to use a version of his name without
infringing on the trademark rights of his estate, a court has ruled.
Zappa's widow cannot enforce her rights to the Zappa trademark in Germany
because she has not used it in commerce there. The court said that use of
the name on a US-hosted website was not sufficient to qualify as use in
commerce, according to German newspaper reports.
The Zappanale festival celebrates the music of Zappa and sells merchandise
featuring, amongst other things, images of his distinctive beard.
Gail Zappa said that the festival and merchandise breached the EU trademark
rights held by her. The Higher Regional Court in Dusseldorf, though,
disagreed.
It said that the Zappa name had only been used as part of a domain name of a
website based in the US but accessible from the EU. That website had not
used the trademark to sell or advertise products for the EU market, though,
and so was not used in trade.
Trademark owners must use them to protect them. The court said that though
the Zappa.com website had been live for years it sold no merchandise into
the EU, according to German news site Der Westen.
Newspaper Der Spiegel said that Gail Zappa had claimed damages of €150,000
over the sale of merchandise and CDs related to the festival.
FzFan
> The court said that though the Zappa.com website had been live for years it sold no
> merchandise into the EU
That's a dumb thing to be said by the court. In fact, it's not true. A
lie. A falsification of the truth. etc. etc. etc.
AAAFNRAA!!!!!
Ron Moses
Yeah, I'm all for the verdict, because come on let's all lighten up
and enjoy what little time we have on this earth, shall we? But that
has to be an error in the article; I just can't believe the court
would have said that without being challenged immediately. I assume
any number of Euro-folk here have bought merch from Zappa.com, yes?
ron
Matti Vuori
news:44bd3545-e7ea-4b7d...@d8g2000yqf.googlegroups.com:
The German magazine Der Westen, which was referred in the The Register
article, writes in its original article that Zappa.com had not sold any
merchandise in years, thus not maintaining its _store_ status. And indeed,
it seems that it is true - for example the CDs are sold by Barfco-Swill.
Antal Adriaanse
> Op 7-7-2010 6:27, MS schreef:
>
> > The court said that though the Zappa.com website had been live for years
> > it sold no
> > merchandise into the EU
>
> That's a dumb thing to be said by the court. In fact, it's not true. A
> lie. A falsification of the truth. etc. etc. etc.
I don't think it's a lie. But I could be wrong. So, how does this work? If I
(a EU citizen) buy from a US-based webstore, does that mean that the
webstore is selling merchandise into the EU? Also I will have to pay
additional import taxes. To me that means I am importing merchandise into
the EU, and not that the webstore is selling merchandise into the EU. The
webstore doesn't make a difference between US, EU or other nationalities,
other than p&p.
--
Antal
the mike keneally band tour chronology
e: chronology(at)keneally.com
i: http://www.keneally.com/chronology
Milhouse G
This is a great point. It's been several years since Barfko-Swill has
done it's own mailorder via Zappa.com, with people actually mailing
stuff out from ZFT/B-S headquarters. All of that business is handled by
MusicToday now and has been for some time. I'm not a law-talkin' guy or
anything, but on that basis, the notion that Zappa.com has not sold any
merchandise into the EU seems like a pretty valid claim.
--
Milhouse
computeruser
It depends on what your definition of "is" is.
It may be right that Zappa.com hasn't sold anything, in the UK.
However the re-directs and links from the main site should count when
laying this out. Holding back these details is at minimum
disingenuous, in my view.
FzFan
deepinder
One of the first things one does when registering a Patent and also I
believe in the case of trademarks is to register it for territories. I
would have thought that this would have been done for US and oversea's
territories. It would be interesting to see the lodged application and
the granted trademark for this. I hope Gail comes to some sort of
accommodation over this, as I see her point, but the Zappanale are not
going to back down now. $150,000 is a trifling sum in the context of
all this misery and bad feeling.
David Z
news:89ms3a...@mid.individual.net...
The point that the court is making is that you (Gail, et al.) can exclude
others from exploiting your franchise only if you exploit it yourself. In
other words, if Gail, et al. had been successfully promoting Zappa's music,
etc. in the EU market, then they would have earned the right to exclude
others from doing so. But since Gail and her clan have essentially
abandoned that endeavor in the EU market, it becomes fair game for others to
do so. I think that principle is fair and reasonable.
computeruser
> "Milhouse G" <milhouse_on_a_st...@derekmarvelli.org> wrote in message
>
> news:89ms3a...@mid.individual.net...
>
>
>
>
>
> > Matti Vuori wrote:
>
> - Show quoted text -
Has ZPZ been to Europe? I see dates for a tour that was planned/
scheduled/annoumced in 2007, did it happen? [http://blogger.xs4all.nl/
werksman/archive/2007/05/21/217999.aspx]
To shift gears a bit; I don't see any ZPZ shows over at Zappateers. Is
there a site where I can find torrents of ZPZ audience recordings?
computeruser
Duh! eelco janzen says; they (ZPZ) are in Amsterdam tonight!! Which
contradicts the premise put forth by David Z that they have
"essentially abandoned ...the EU market"
> To shift gears a bit; I don't see any ZPZ shows over at Zappateers. Is
> there a site where I can find torrents of ZPZ audience recordings?- Hide quoted text -
Martin Gregorie
>
> Has ZPZ been to Europe? I see dates for a tour that was planned/
> scheduled/annoumced in 2007, did it happen? [http://blogger.xs4all.nl/
> werksman/archive/2007/05/21/217999.aspx]
>
--
martin@ | Martin Gregorie
gregorie. | Essex, UK
org |
David Z
news:a9e52998-7f84-45c7...@8g2000vbg.googlegroups.com...
*****************************************************
I'm not saying that Gail, et al. has "essentially abandoned" the EU market.
I'm saying that's the court's position as I understand it, which appears
reasonable to me. I don't know what facts were presented or not presented
to the court to demonstrate that Gail et al. has duly attempted to market
the Zappa brand in the EU.
FzFan
> Has ZPZ been to Europe? I see dates for a tour that was planned/
> scheduled/annoumced in 2007, did it happen? [http://blogger.xs4all.nl/
> werksman/archive/2007/05/21/217999.aspx]
Did the Pope shit in the Woods?????
http://www.dweezilzappaworld.com/
http://www.youtube.com/watch?v=AwIJky-EMq0
http://www.youtube.com/watch?v=VPUv0UfPSQ4
computeruser
Did you see this paragrapher, which I was responding to?
> The point that the court is making is that you (Gail, et al.) can exclude
> others from exploiting your franchise only if you exploit it yourself. In
> other words, if Gail, et al. had been successfully promoting Zappa's music,
> etc. in the EU market, then they would have earned the right to exclude
> others from doing so. But since Gail and her clan have essentially
> abandoned that endeavor in the EU market, it becomes fair game for others to
> do so. I think that principle is fair and reasonable.
Is the bear catholic?
Joachim Ott
Was Mao a commie?
David Z
news:i1cnvm$b15$1...@news.eternal-september.org...
Is computeruser a nerd?
Ron Moses
> others from exploiting your franchise only if you exploit it yourself. In
> other words, if Gail, et al. had been successfully promoting Zappa's music,
> etc. in the EU market, then they would have earned the right to exclude
> others from doing so.
A very fine point: I think we could replace "successfully promoting"
with "making any effort to promote". I doubt you'd need to be
successful at it, necessarily.
> But since Gail and her clan have essentially
> abandoned that endeavor in the EU market, it becomes fair game for others to
> do so. I think that principle is fair and reasonable.
I'm not sure I agree. If Coke doesn't market to Finland for some
reason, can I step in and start selling my own product under the name
Coke to the Finnish market? That doesn't seem fair or reasonable to
me.
Just to play devil's advocate... what if you *choose* to let your
franchise lay fallow in a given market, then what recourse would you
have? Let's say I have issues with the current political structure in
the tiny European nation of Transylmenia and I don't want my franchise
promoted there. But the folks at the Mosesnale festival want to put
on a show and sell t-shirts with my face and trademarks on them.
Would this ruling render me incapable of doing anything about it?
Seems like if it's my franchise, it's for me to promote or not.
ron
computeruser
You are applying fairness and logic, unfortunately; the lawyers and
judges (magistrates) are not necessarily guided by these. IMO
Not to mention the fact that private property rights are under attack,
rather than those rights getting solidified. The courts have been
complicit in undermining these fundamental human rights.
David Z
news:30c9480e-f6c3-488d...@q22g2000yqm.googlegroups.com...
******************************************************
Good points. The other side of the argument is that you shouldn't be able
to acquire the exclusive marketing rights to a product for the sole purpose
of suppressing others from marketing it. For example, if I invented a car
that used no fossil fuels, should a car company be allowed to purchase the
rights to it just to keep it off the market?
computeruser
> "Ron Moses" <ronmo...@gmail.com> wrote in message
You seem to be talking about your perception of fairness, and your
desire to give government authority to mandate behavior.
Personal liberty and property rights. - It seems the courts thought
the promoters were free, (at liberty) to promote the tribute festival.
My take is; they concluded it didn't violate ZFT's (property)
trademark rights, significantly enough to warrant any further
attention from the court.
Quote from the original article/post:
***
The Zappanale festival celebrates the music of Zappa and sells
merchandise
featuring, amongst other things, images of his distinctive beard.
Gail Zappa said that the festival and merchandise breached the EU
trademark
rights held by her. The Higher Regional Court in Dusseldorf, though,
disagreed.
***
The breach, perceived by Gail, wasn't significantly demonstrated, in
court. Apparently, her evidence, or argument was weak.
Ron Moses
> "Ron Moses" <ronmo...@gmail.com> wrote in message
>
> franchise lay fallow in a given market, then what recourse would you
> have? Let's say I have issues with the current political structure in
> the tiny European nation of Transylmenia and I don't want my franchise
> promoted there. But the folks at the Mosesnale festival want to put
> on a show and sell t-shirts with my face and trademarks on them.
> Would this ruling render me incapable of doing anything about it?
> Seems like if it's my franchise, it's for me to promote or not.
>
> ******************************************************
>
> Good points. The other side of the argument is that you shouldn't be able
> to acquire the exclusive marketing rights to a product for the sole purpose
> of suppressing others from marketing it. For example, if I invented a car
> that used no fossil fuels, should a car company be allowed to purchase the
> rights to it just to keep it off the market?
I have to believe that "a car that uses no fossil fuels" would be too
broad a concept for you to protect. Could you devise a specific
technology that fits the description, and suppress its marketing,
while allowing others to develop and market other non-fossil fuel
techs that don't infringe on your design? Legally, I'm not sure I see
a problem with that. Ethically and morally, sure.
Of course we're straying pretty far afield with our examples now. :-)
The court has made their decision, so that's that. But it does strike
me as odd that you can legally sell unauthorized Zappa merch without
kicking so much as a Euro back to the ZFT. Say what you want about
Gail, that just doesn't sound right to me.
Gail should look into what far-larger franchises aren't sufficiently
exploiting their trademarks in the EU and make a few bucks that way.
Apparently it's a good business.
ron
David Z
On Jul 15, 6:10 pm, "David Z" <m...@privacy.net> wrote:
>> "Ron Moses" <ronmo...@gmail.com> wrote in message
>>
>> Just to play devil's advocate... what if you *choose* to let your
>> franchise lay fallow in a given market, then what recourse would you
>> have? Let's say I have issues with the current political structure in
>> the tiny European nation of Transylmenia and I don't want my franchise
>> promoted there. But the folks at the Mosesnale festival want to put
>> on a show and sell t-shirts with my face and trademarks on them.
>> Would this ruling render me incapable of doing anything about it?
>> Seems like if it's my franchise, it's for me to promote or not.
>>
>> ******************************************************
>
>> Good points. The other side of the argument is that you shouldn't be able
>> to acquire the exclusive marketing rights to a product for the sole
>> purpose
>> of suppressing others from marketing it. For example, if I invented a car
>> that used no fossil fuels, should a car company be allowed to purchase
>> the
>> rights to it just to keep it off the market?
>
>I have to believe that "a car that uses no fossil fuels" would be too
>broad a concept for you to protect. Could you devise a specific
>technology that fits the description, and suppress its marketing,
>while allowing others to develop and market other non-fossil fuel
>techs that don't infringe on your design? Legally, I'm not sure I see
>a problem with that. Ethically and morally, sure.
Actually, their could be legal problems, too. The purpose of granting a
patent is to promote invention. An inventor is granted the exclusive rights
to market an invention in exchange for full disclosure. The government
offers that quid pro quo in order to promote invention for the general good.
I'm not a lawyer, but it seems to me that an argument can be made that
acquiring the intellectual property rights with the intention to suppress
the product is in contravention to the fundemental premise of the law and
could be grounds for denying exclusivity.
> Of course we're straying pretty far afield with our examples now. :-)
I don't think so. A strong anology can be made to copyrights and
trademarks.
>The court has made their decision, so that's that. But it does strike
>me as odd that you can legally sell unauthorized Zappa merch without
>kicking so much as a Euro back to the ZFT. Say what you want about
>Gail, that just doesn't sound right to me.
>Gail should look into what far-larger franchises aren't sufficiently
>exploiting their trademarks in the EU and make a few bucks that way.
>Apparently it's a good business.
I think Gail's biggest problem here is that the other side has the home
court advantage.
computeruser
My take is; they concluded it didn't violate ZFT's (property)
trademark rights, significantly enough to warrant any further
attention from the court.
Quote from the original article/post:
***
The Zappanale festival celebrates the music of Zappa and sells
merchandise
featuring, amongst other things, images of his distinctive beard.
Gail Zappa said that the festival and merchandise breached the EU
trademark
rights held by her. The Higher Regional Court in Dusseldorf, though,
disagreed.
***
The breach, perceived by Gail, wasn't significantly demonstrated, in
court. Apparently, her evidence, or argument was weak.
Plus as David Z said: ...the other side has the home court advantage.