UPDATED: #Redpeak Intellectual Property Issue?

POSTED BY Rick Shera
15 September 2015

posted in l@w.geek.nz | Fair Trading Act | Passing off | Intellectual Property | Copyright | Trademarks




The intellectual property issues around the #nzflag process are very interesting.

IP was one of the things that had to be taken into consideration by the flag consideration panel but, even then, the panel had to remove a Hundertwasser inspired design from the long list of 40 after a copyright complaint from the Hundertwasser Foundation. Then there is the New Zealand Rugby Union's understandable reluctance to allow the use of a silver fern on a black background given how much it has invested in promoting and defending it. (Although, at least two cases have held that the NZRU does not have exclusive rights to just any fern on a black background, so I trust that was not the reason why the flag panel didn't allow such a design to proceed, eh Rowan Simpson.)

But, it seems that there is a now a possibility that the so called Red Peak flag might be added, either as a replacement for one of the two similar fern flags, or as an additional choice.

One problem with that is someone has discovered a US company uses a logo that is similar. Apparently, they don't mind, although one never knows what might happen if #redpeak were to be chosen.

However, someone (HT @br3nda if I recall correctly) pointed out that there is a New Zealand company, Arrow Uniforms, that also has a similar logo. According to the wayback machine, Arrow looks to have used that logo since at least 2010.

Although they don't appear to have trade marked it, they'd certainly have sufficient passing off and Fair Trading Act rights to cause some problems. I see they claim copyright on their site also, so you'd add a claim for copyright in the logo into the mix.

I haven't seen any mention of this in MSM. I hope someone has covered it off. If the criticisms of the process have been strident already, imagine what would happen if #redpeak got added and then had to be discarded for IP reasons.

Lowndes Jordan does not act for Arrow Uniforms, but they did send me their press release issued late 25 September. See attached.

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