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If Saul were to register Floppy Ears Ltd as the company name, critically discuss the circumstances which might increase the risk of a successful passing off claim from Floppy Eared Bunny.
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Question (please answer Parts (a), (b), (c) and (d))
Saul Spaniels is the stage name of a Blackpool - based illusionist who is famous throughout the UK due to his prime-time television appearances in the 1990s. He coined the catchphrase: "Escape reality and enjoy the illusion". Since retiring as a performer, Saul has been creating and selling smaller illusion kits for aspiring junior magicians. In 2012, Saul was named by
MAGIC Moments Magazine as one of the "most influential people in junior magic in the past 50 years". He has also received a multitude of industry awards, including The Toymakers` Creative Fellowship Trophy.
Saul currently only supplies toy wholesalers in the UK, but he plans to expand the business to direct online sales.
To mitigate the financial risk of expanding to Internet sales, Saul has been advised to incorporate his business as a private limited liability company. He is proposing to call it
Floppy Ears Ltd. However, he is aware of a children`s entertainer in the Bristol area trading under the name
Floppy Eared Bunny
Saul has recently been working on a new illusion kit called
The Disappearing Spaniel. He would like to use the spaniel image (depicted right) on the
packaging. The image of the spaniel has been taken from a much larger charcoal drawing by the French artist, Pierre Noir. The illusion itself relies on a new reflective `invisibility` foil that Saul`s scientist son has developed.
Saul seeks your advice on the following intellectual property (IP) matters:
(a) If Saul were to register Floppy Ears Ltd as the company name, critically discuss the circumstances which might increase the risk of a successful passing off claim from
Floppy Eared Bunny.
(b) In relation to the use of the charcoal spaniel image on the packaging, critically discuss the circumstances which should affect the merits of any copyright claim under English law.
(c) Assuming the foil meets the criteria for patent registration, critically discuss the advantages and disadvantages of patent registration as compared to the protection offered to trade secrets under English law.
(d) Critically discuss the advantages of registered trade mark protection compared to reliance on the common law of passing off and identify signs which Saul should consider registering as trade marks in the context of his illusion kit business.