Sunday, May 13, 2007

Newly Fresh Chilled

An interesting little story in the JoongAng Ilbo talks about the use of the initials NFC on orange juice in Korea:

It isn't "not from concentrate," it's "newly fresh chilled." At least that's what the makers of Sunkist NFC, the orange juice distributed by Haitai Beverage Company, are trying to claim...The name NFC appears in big letters on their orange juice sold in Korea, implying it is an acronym for "not from concentrate." However, small letters below the label reads that the juice "is a delicious blend of 'from concentrate' and 'not from concentrate' orange juice."...The Korea patent office said Haitai registered the name only as a trademark, and if it says NFC means "newly fresh chilled," then legally the firm has done nothing wrong.

I wonder who the KIPO official is, since it may have screwed the pooch on that ruling. Korean Trademark Law, Article 7, Paragraph 1, line (xi):

"...trademark registration may not be obtained in the following cases...(xi) trademarks that are liable to mislead or deceive consumers on the quality of the goods."

Now that is the more direct one, however there is more. There is Haitai's theoretical liability under the Koran competition and labeling laws, wherein one could allege misleading consumers as to the nature of the goods. This allegation would be entirely separate from the ability to register such a mark by Haitai (i.e. NFC can be registered, but Haitai could not mislead consumers in it use of  the trademark).

Of course KIPO's defense on the issue could come down to two things:

1. The "consumer" defined are average Korean consumers, and they are not familiar with NFC as initials for "Not From Concentrate". Accordingly the trademark does not mislead consumers.

2. Even if the initials NFC have come to be understood as NFC, at the time it was registered they were not understood as such. In addition in this interim period Haitai has invested significant sums of money into the mark NFC, thus making it so famous that the public has associated NFC with Haitai's juice as well as what ever secondary associations (i.e. "Not From Concentrate").

Of course this is all theoretical, if anybody asked me, my first piece of advice is to forget about it. The mark has been around too long, and Haitai is too big. You might as well take US$100,000 and have a bond fire, it would be as about effective in fighting this in Korea.


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