There is an unspoken belief among music critics that had George Harrison not been a Beatle, he wouldn’t have lasted more than a minute in the pop business. This belief has nothing to do with Harrison’s talent and everything to do with his professional judgment. First, he released all his good songs on one three-record set right off the bat, thus rendering him an immediate has-been as a solo artist. Second, when he was sued for ripping off the melody of the Chiffons’ 1963 hit “He’s So Fine” for his 1970 hit “My Sweet Lord,” he professed that he had done so “unknowingly.” Perhaps the judge was a closet Stones fan, but in any case he didn’t gently weep over the ex-Moptop’s naivete but forced him to hand over the royalties.
The lesson here is that if you’re going to steal ideas, be brazen about it, because no one will ever believe you if you claim the theft was accidental.
The Japanese are often accused of taking what isn’t theirs and remaking it. And while they sometimes improve on the original, this tendency has given the country a reputation as a land of copycats. Occasionally, the borrowing gets a little too close for comfort and lawsuits ensue. While the local Starbucks franchise was opening outlets faster than you could say “caffeine addiction,” its main domestic competitor, Doutour, tried quietly to launch its own boutique coffee-shop chain with a logo and color scheme that was practically identical to Starbucks’. They didn’t get away with it. After the Starbucks headquarters in the United States threatened legal action, Doutour made a few squeaks of protest and rolled over. All the signs were bright blue the next morning.
However, a pair of recent trademark-infringement cases shows what you can get away with if you go about your larcenous ways with flair and imagination.
In February, a small publishing company, Michi Shuppan, put out “Where Has My Butter Gone?” The media immediately nailed it as a “parody” of the Japanese translation of Dr. Spencer Johnson’s self-help fable “Who Moved My Cheese?” which has sold more than 3 million copies here. Fuyosha, the Japanese publisher of “Cheese,” didn’t see it as a parody at all, and said that Michi, by using the same font and a similar color scheme and artwork on the cover, aimed to “fool” consumers into buying “Butter” when they actually wanted to buy “Cheese.” Fuyosha sued.
A spokesman for Fuyosha told the weekly magazine Shukan Bunshun that the company has no problem with parodies, and mentioned that in the U.S., where the Spencer book was also a bestseller, there was a successful parody book titled “Who Cut the Cheese?” (The fact that the spokesman translated this title directly without mentioning its idiomatic meaning indicates he didn’t get the joke.)
Michi did not roll over, and in fact defended “Butter” as not a parody but, in essence, an “antibook.” In other words, a statement of protest against the current publishing trend of concentrating on translated foreign bestsellers.
Of course, the media couldn’t resist and jumped right into the debate. In its Sunday book section, the Asahi Shimbun published a lengthy review of “Butter” that claimed it was superior to “Cheese,” not just as literature, but as self-help. Last week, 91 other publishing companies formed a group to protest the lawsuit, saying that such a precedent would impinge on the industry’s freedom of speech.
Meanwhile, Michi is laughing all the way to the bank. Sales agents for the publisher have asked bookstores to display the two books together. More than two months into the controversy, no one is going to be fooled into buying “Butter” when they want “Cheese,” because “Butter” is just as famous. Fuyosha should actually be sending Michi letters of thanks rather than subpoenas since people who buy one book will undoubtedly buy the other. The two volumes have become inexorably linked in most people’s minds.
Michi’s bold and brilliant exploitation of the media, however, is nothing compared to what foodmaker S&B has done. Two weeks ago, House Foods sued S&B over the packaging of its new Kokumaru curry roux, which is identical to the packaging of House’s Torokeru curry roux: same royal-blue box, same font, same copy, same everything.
S&B coolly replied to the suit with a statement saying that “the name is different.” But even a quick glance will reveal that in this case, the defendant very clearly means to fool consumers into thinking that they are buying House’s product.
House is the biggest curry maker in the country, but many years ago, S&B was. House won the curry wars through massive celebrity-laden advertising of its niche brands — Vermont, Java, The Curry, etc. — and for the past year it has been promoting the relatively new Torokeru brand with a blitzlike TV commercial campaign.
S&B does not advertise Kokumaru. It doesn’t have to, since House is already doing it. S&B is like a kid on a skateboard hanging on to the end of the House bus for a free ride. And what’s the worst that can happen? A judge will tell S&B that it has to change its packaging, but until then think of all the money it’ll save on advertising. Larceny pays!
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