Dry January

By Brand Heeler

Brands are more than just trade marks – you need to be careful how you exploit them

Far be it from us to disagree with T S Eliot, but (in our humble opinion) January is the cruellest month. Thank goodness it’s over – it can feel like a 31-day calendrical hangover at the best of times, even more so when you’re trying to stick to ‘Dry January’ while catching up on Game of Thrones box sets (have you seen how much hydromel those guys knock back???) So, while we’ve been waiting for spring, we’ve been delighted to spot a couple of interesting items which reveal some contrasting attitudes to IP rights. And doubly delighted that one of them concerns our favourite thrash metal band Metallica (yeah, we do have a favourite, actually…)

Metallica’s US lawyers apparently sent a cease-and-desist letter over the border to Canada’s No 1 tribute to Metallica (‘Sandman’, in case you were wondering) demanding they stop ‘using the name Metallica, or any of Metallica’s logos’ in connection with their tribute act. This might prove a little awkward, given Sandman’s line of work, not to mention that there’s probably nothing wrong with saying your Metallica tribute act is a tribute to Metallica which plays Metallica songs, provided that is indeed the case.

The letter focussed solely on the use of Metallica’s trade marks – it was never questioned that Sandman was anything less than fully licensed from a copyright point of view. Apparently, the letter was the work of an ‘overzealous attorney’ and the band themselves were at pains to distance themselves from it, giving Sandman their blessing – ‘Keep doing what you’re doing … we totally support you!’ All very heart-warming, if a just a little suspicious…

After all, wasn’t it Metallica who, way back in the dim-and-distant last decade, implicated 335,000 of their own fans when they sued Napster for facilitating file-sharing? They’ve certainly got form when it comes to asserting their intellectual property. Not that we see anything wrong with that: rights are rights, and are only worth anything if they’re properly enforced. But the Napster litigation was a massively pyrrhic affair – a legal win, but a PR disaster. The band have clearly learned some subtlety, even if that does mean hanging their attorneys out to dry when they occasionally (still) get it wrong.

Meanwhile, over in China, Quentin Tarantino revealed he would have no problem with counterfeit copies of his movies being the only way his fans could get to watch uncensored versions. The Chinese authorities are notoriously protective of public sensitivities and have attracted criticism from bloggers for ‘castrating’ films. However, despite China representing one of the largest markets in the world for films, Quent is gambling with fairly meagre sums – The Hateful Eight took only RMB 3.7m (£393,000) throughout the entire People’s Republic. We wonder what his attitude might be to piracy threatening the balance of his latest film’s $425 million global box office take?

This article contains our thoughts and opinions on an issue of general interest and is written from the perspective of Australian and/or English law. It is not legal advice and is not provided in the context of a solicitor-client relationship. It may not even be relevant to your jurisdiction. No duty of care is assumed or accepted. Please carry out appropriate research and consult with a suitably qualified legal expert before taking any action or making any decisions.