October 25, 2017
‘JOHN LEMON’ lemonade recently ran into hot water (or should that be cold water) after Yoko Ono’s lawyers sent a letter to the drink brand claiming that the company was using John Lennon’s name to promote its lemonade and should pay damages. Reportedly, Yoko Ono’s lawyers cited a Facebook post depicting the ‘JOHN LEMON’ logo underneath an image of John Lennon holding lemons and also an advert which included the words ‘LET IT BE’.
The company behind ‘JOHN LEMON’ lemonade denied that it was trying to use John Lennon to promote its drink. Interestingly, it had an earlier trade mark in the EU (filed September 2013 for ‘JOHN LEMON’) than Yoko Ono (her ‘JOHN LENNON’ EU trade marks were filed in July/August 2016, although Yoko Ono had earlier trade marks in other territories). Nonetheless, rather than incurring the expenses of legal proceedings, John Lemon agreed a settlement that means that it will reportedly rebrand as ‘ON LEMON’ and it will have until the end of October to sell its drinks labelled ‘JOHN LEMON’. It remains to be seen whether, as part of the settlement, John Lemon will have to surrender its EU trade mark.
In brief, the owner of a registered trade mark can try to use the trade mark to prevent anyone else from later using or registering, in the territory that the trade mark is registered, an identical or similar mark with goods or services that are identical or similar to the goods and services that the trade mark is registered for (if there is a likelihood of confusion). Therefore, in theory, John Lemon had earlier and stronger trade mark rights in the EU than the later ‘JOHN LENNON’ mark.
However, John Lennon is a former Beatle and is very well-known so Yoko Ono could have tried to argue earlier unregistered rights. For example, in the UK, there is the right to prevent passing off by another business of your goods/services as their own which requires (coincidentally according to the ‘Jif Lemon’ case) proving that you have goodwill relating to the goods and services, that a misrepresentation was made which is likely to lead the public to believe such goods/services are yours and that this causes you damage. The Irvine v Talksport case allowed passing off to extend to preventing false endorsements for those with a significant reputation/goodwill (e.g. celebrities) where a significant section of the public would think there had been an endorsement. However, this is by no means an easy claim and passing off in general can be a difficult claim as you have to prove all of the elements (a trade mark claim is often easier as you have a certificate to prove your rights).
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