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Harry Potter publisher sued for (MORE) JK Rowlin plagiarism.

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Postby rath » Fri Jun 19, 2009 1:10 am

Harry Potter vs Willy The Wizard: JK Rowling in plagiarism claim


16th June 2009, 15:15 WST


Publishers of the popular children’s fantasy series Harry Potter are being sued following allegations its plot and characters were created by another author.

The estate of penniless English children’s writer Adrian Jacobs has lodged proceedings in the High Court of England against Bloomsbury Publishing.

The estate, willed to Paul Allen, alleges that in writing the book Harry Potter and the Goblet of Fire, JK Rowling copied parts of the late author’s work.

In what is expected to be a billion-dollar law suit, the estate is seeking to prevent further copies of the book being sold and either damages or a share in profits made by Bloomsbury Publishing.

“Adrian Jacobs did not live long enough to see the massive success of the Harry Potter books and films,” Mr Allen said in a statement released to Australian media today.

“If he had he would have sought the proper recognition of his contribution to this success story.”

Jacobs is said to have died penniless in a London hospice in 1997.

It is alleged characters and concepts, such as Hogwarts Express, wizard contests and bathroom contemplation, were first published in Jacobs’ book The Adventures of Willy the Wizard — No1 Livid Land about 10 years before JK Rowling first published any of the Harry Potter books.

Another allegation is that at the time of trying to get his work published, Jacobs sought the services of a literary agent, Christopher Little, who later became Rowling’s agent for the Harry Potter series.

The estate is seeking to have Rowling listed as a joint defendant in the proceedings, but it is understood the decision to link the wealthy author to the copyright claim will be made by the court.

Bloomsbury Publishing was not immediately available for comment.

AAP



Bloomsbury Publishing has denied allegations that author JK Rowling copied "substantial parts" of a book by another children's author when she wrote Harry Potter And The Goblet Of Fire.

The book, published in 2000, was the fourth instalment of the hugely successful Harry Potter series that has sold more than 400 million copies worldwide and been turned into a multi-billion-dollar film franchise.

"The allegations of plagiarism made today ... by the estate of Adrian Jacobs are unfounded, unsubstantiated and untrue," said a statement from Bloomsbury, which publishes Harry Potter in Britain.

"This claim is without merit and will be defended vigorously."

In an earlier statement, Jacobs' estate said that it had issued proceedings at London's High Court against Bloomsbury for copyright infringement.

"The estate is also seeking a court order against JK Rowling herself for pre-action disclosure in order to determine whether to join her as a defendant to the ... action," the statement said.

It named the estate's trustee as Paul Allen, and said that Rowling had copied "substantial parts" of The Adventures Of Willy The Wizard - No 1 Livid Land written by Jacobs in 1987.

It added that the plot of Harry Potter And The Goblet Of Fire copied elements of the plot of Willy The Wizard, including a wizard contest, and that the Potter series borrowed the idea of wizards travelling on trains.

"Both Willy and Harry are required to work out the exact nature of the main task of the contest which they both achieve in a bathroom assisted by clues from helpers, in order to discover how to rescue human hostages imprisoned by a community of half-human, half-animal fantasy creatures," the statement said.

"It is alleged that all of these are concepts first created by Adrian Jacobs in Willy The Wizard, some 10 years before JK Rowling first published any of the Harry Potter novels and 13 years before Goblet Of Fire was published."

According to the statement, Jacobs had sought the services of literary agent Christopher Little who later became Rowling's agent.

Jacobs died "penniless" in a London hospice in 1997, it said.

In its response, Bloomsbury said Rowling "had never heard of Adrian Jacobs nor seen, read or heard of his book Willy The Wizard until this claim was first made in 2004, almost seven years after the publication of the first book in the highly publicised Harry Potter series."

"Willy The Wizard is a very insubstantial booklet running to 36 pages which had very limited distribution. The central character of Willy The Wizard is not a young wizard and the book does not revolve around a wizard school," Bloomsbury added.

Bloomsbury said that the claim was first made in 2004 by solicitors acting on behalf of Jacobs' son, who was the representative of his father's estate.

"The claim was unable to identify any text in the Harry Potter books which was said to copy Willy The Wizard."

- Reuters
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Postby rath » Fri Jun 19, 2009 1:11 am

THE HARRY POTTER TRADE MARK

Clair Jennifer had a childhood dream since the age of 7. She was raised to believe that when a person left school they set their goals and went out and achieved them. So she did.

She studied fashion at TAFE and gained experience in all facets of the fashion retail, manufacturing and textile industries.

At the age of 17, she operated market stalls seven days a week. Rising at 7 am and travelling all over Sydney and outskirts in a clapped out van. Sometimes setting up in the evening and sleeping under the tables.

At 19 armed with $2000, second hand shop fittings and determination she opened a store and founded the WOMBAT name in 1988. Within a month she could not keep up with the demand. Within a year she opened 3 additional stores. Within a decade there were nearly 50 stores employing over 250 with annual turnover of $36 million. She was named Australia’s Young Entrepreneur of the year in 2001.

The stores mainly resold other manufacturers labels but due to agreements with various shopping centres, she was prevented from selling the more popular brands. She therefore realized another of her goals and conceived her own brand of clothing in 1994 which she named HARRY POTTER. She initially used the brand in respect of womens clothing, but intended to expand into menswear and childrens clothing as the brand would appeal to all. Sales under the brand rose steadily to amount to over $7 million by 1998.

She however did not seek to register the brand as a trade mark until 1998.

Her motivation to seek registration was prompted by the publication of the books by R K Rowling.

However by this time Time Warner Entertainment Company was seeking registration for trade marks associated with the books, the films and the spin off merchandising associated with the character HARRY POTTER.

Clair was able to file an application for registration of the name in respect of clothing prior to Time Warner, but this was not the end of the matter.

Clair’s application was accepted by the Australian Trade Marks Office and a period was then allowed for other parties to oppose the registration. Opposition was quickly lodged by Time Warner.

Time Warner argued that Clair was not the true owner of the mark; that her use of the mark would cause deception and confusion in the market place and if all that failed, it could not be a registrable trade mark as it consisted of a common given name and a common surname and therefore could not be distinctive. Time Warner actually found four Australians with the surname POTTER and the given names Harry, Harold and Henry.

After evidence was compiled by both sides, a hearing was held before the Registrar of Trade Marks. Time Warner armed themselves with a legal team headed by counsel, which led Clair to do the same.

The Registrar found for Clair on all grounds based on the evidence of her actual use in respect of clothing. The Registrar directed that her trade mark be registered.

However, Time Warner appealed to the Federal Court of Australia. They put forward the same arguments as well as arguing that if they were unsuccessful, Clair’s registration should be restricted to women’s clothing as this is what she actually sold.

They also argued that the evidence placed before the Registrar by Clair was not accurate as it implied that she used the mark throughout Australia whereas she really only did so in NSW, Qld, Vic and South Australia. Therefore her evidence was inaccurate and should be excluded.

The Court upheld the Registrar of Trade Marks decision and allowed the trade mark to be registered. The Court allowed the evidence to be admitted as well as evidence that Clair had always intended the brand to be used on menswear as well as for children.

What do we learn from this?

1. Clair overlooked a basic principle in protecting her intellectual property from the date she created it. This allowed others to be ignorant of any rights she may have had prompting them to proceed with their own plans.

2. By the time she sought registration, there was a new and powerful body who wished to claim international ownership of the name.

3. Although the Registrar and the Federal Court recognized Clair’s right to the trade mark there was considerable cost to her as well as a 5 year delay in obtaining registration of the trade mark. Although costs were awarded against Time Warner, Claire would still be considerably out of pocket.

4. If Clair had her registration in place when the Rowling books were published, she would have been in a strong position to negotiate license agreements for Time Warner to use the mark in respect of certain clothing. This opportunity appears to have been lost completely.

5. By not having the registration in place and being confronted by the power and money of Time Warner, Clair could easily have lost the whole thing by not having the money and ability to fight the matter.

6. In all probability R K Rowling and/or Time Warner may have conducted preliminary searches to determine the availability of the name before adopting it. Obviously, this would have revealed that it was available and having subsequently adopted it, they would have seen Clair as another trader trying to cash in on their reputation. They would then have had no hesitation to oppose the registration with the funds available to them.

7. Treat your intellectual property with the respect that it deserves.
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Postby rath » Fri Jun 19, 2009 1:13 am

Trade Marks – Who is the Real Harry Potter? - Time Warner Entertainment Company, LP v Stepsam Investments Pty Ltd [2003] FCA 1502 (December 2003)

Contact: Cynthea Reynolds and Colin Oberin of Allens Arthur Robinson

The Federal Court recently ruled on a dispute over the trade mark HARRY POTTER between a clothing company and the Time Warner Entertainment Company, which owns the rights to make movies based on the Harry Potter books.

By Colin Oberin, Partner, and Cynthea Reynolds, Lawyer

Background to the case

This case involved an appeal from the Registrar of Trade Mark's decision to allow Stepsam Investments Pty Limited (Stepsam) to register HARRY POTTER in class 25 in relation to clothing. Stepsam licensed the trade mark to Wombat Enterprises Pty Ltd (Wombat), who had been selling women's clothing under this trade mark since approximately 1994. The Registrar rejected an opposition by Time Warner Entertainment Company, LP (Time Warner) (which owns rights to make movies based on J K Rowling's Harry Potter books), and registration was allowed under section 41(5) of the Trade Marks Act 1995 (Cth) (the Act).

In its appeal to the Federal Court, counsel for Time Warner modified their position and contended that Stepsam's registration of the trade mark should be limited to adults' clothing. However, Stepsam argued that it was entitled to have the trade mark registered in relation to all types of clothing.

Legal issues

Time Warner relied on four grounds of opposition:


the trade mark is not capable of distinguishing Stepsam's goods from the goods and services of other persons (s41);

the use of the trade mark by Stepsam would be contrary to law (s42(b));

Stepsam does not intend to use, or authorise the use of, the mark in Australia, or to assign it to a body corporate for use in Australia (s59); and

the Registrar accepted the application for registration on the basis of representations that were false in material particulars.
All grounds of opposition failed.

Section 41: capable of distinguishing

The court endorsed the explanation of s41 given by Justice Branson in Blount Inc v Registrar of Trade Marks (1998) 40 IPR 498 at 504-505. That is, the decision maker must conduct a three-staged inquiry into whether the trade mark is capable of distinguishing the goods from the goods of other persons. In summary, the three stages involve questioning:


a. whether the trade mark is inherently adapted to distinguish the designated goods from the goods or services of other persons by itself (s41(2);
b. if not, whether the trade mark is to some extent inherently adapted to distinguish the designated goods from the goods or services of other persons, either in conjunction with evidence of use, intended use or 'other circumstances' (s41(5)); or
c. if the trade mark is not to any extent inherently adapted to distinguish the designated goods from the goods or services of others whether, because of evidence of the extent of the mark's use, that trade mark is nonetheless capable of distinguishing the goods (s41(6)).
In the event that the court is satisfied as to (a), then consideration of neither (b) nor (c) will be necessary.

The court held that the first limb of s41 was not satisfied in this case, but that s41(5) was applicable. The court rejected Time Warner's arguments that the name failed to satisfy s41(5) because it was not used by Stepsam before the priority date (ie the user was Wombat, not Stepsam) and the use by Wombat was limited to low-priced women's clothing. In relation to the limited use argument, the court stated that it is commonplace for a manufacturer or distributor of women's clothing to add to its range of related goods. Thus, the court found that, given the following factors, s41(5) was satisfied and the ground of opposition failed:


the extent to which the trade mark is inherently adapted to distinguish Wombat's goods;

the fact that there is only a small chance of the mark being used by a person named Harry, Harold or Henry Potter;

the volume of sales of HARRY POTTER women's clothing before the priority date; and

the closeness of the relevant fields (ie women's clothing and children's clothing).
Section 42(b): contrary to law

Time Warner argued that use of the HARRY POTTER trade mark on clothing for children and teenagers would be 'contrary to law' because it would mislead and deceive (or is likely to mislead or deceive) customers and would constitute a breach of s52 of the Trade Practices Act 1975 (Cth). It was argued that HARRY POTTER has now acquired a secondary meaning directly associated with the Harry Potter books, films and merchandising. Thus, a substantial number of persons seeing the name HARRY POTTER on clothing would be misled or deceived into making a purchase in the mistaken belief that they would be acquiring clothing with some legitimate association with the Harry Potter boy wizard character.

The court held that Time Warner's argument effectively asserts a monopoly over the words HARRY POTTER, at least in relation to products intended to be purchased by, or on behalf of, children and teenagers. Also, the court affirmed the principle that the application of s42(b) should be considered at the priority date, although prospective conduct after registration could be considered. The court held that, as at 26 February 1998, any association in the Australian public's mind between the name 'Harry Potter' and a product would not have been with the fictitious character created by J K Rowling, but rather with Wombat's clothing. This was based on the fact that, at the priority date for Stepsam's application, Wombat operated 17 clothing stores in New South Wales and Queensland, the first Harry Potter book was published only shortly before Stepsam's priority date, with only approximately 2000 copies having been sold in Australia by that time.

The court considered that the visual content of the trade mark was relevant. Not only are the initial letters of each word on the clothing label in lower case, as distinct from the upper case letters used in all the J K Rowling character merchandising, but the label contains none of the graphics that reinforce identification of the character being merchandised. Thus, mere use by Stepsam or Wombat of the subject trade mark on clothing (even for children) would not be likely to mislead the public into believing the clothing was associated with Time Warner or the Harry Potter books or films. The court noted that, if the trade mark was used in a different way in future, that situation might change – that is, any s52 case that is brought on such grounds in the future can be determined on its merits.

The marked dissimilarity between the fields of activity engaged in by the parties was also considered relevant. The court stated that it is usual for a merchandiser to use pictorial material reminiscent of the character, which is a phenomenon markedly absent from Wombat's clothing.

Section 59: intention to use

Time Warner argued that, at the application date, Stepsam did not have a bona fide intention to use the trade mark (or to authorise it to be used by Wombat), except in relation to women's clothing, to which it had been applied before that date. Time Warner argued that the applicant must have a definite and real intention to deal in certain goods and not a mere general intention of extending the business at some time. However, the court endorsed the rider that this intention does not necessarily have to be immediate or be formed within a limited time. The court accepted Stepsam's evidence that it had always intended to extend the range of clothing into other areas. This was sufficient to support the existence of a real and definite intention to take this step at some time.

Section 62(b): false representations

In regard to s62(b) of the Act, it was contended that Stepsam made false representations regarding the extent to which the trade mark had been used by Stepsam by virtue of the following comments:


'The Trade Mark has been used for five years in a quite extensive manner...'; and

'...the Trade Mark was first used... in Australia upon clothing... in 1994'.
Time Warner asserted that these statements were false, as the trade mark had been used only for a select range of women's fashion and that the trade mark had not been used in every part of the Commonwealth of Australia. However, the court held that the products upon which the trade mark was used are correctly to be described as 'clothing', notwithstanding that those products represented only part of the range of products that are clothing (ie women's clothing). Also, Stepsam's use of the trade mark 'in Australia' contains no implication that sales occurred in every part of the Commonwealth of Australia.

Conclusion

The HARRY POTTER trade mark has been registered by Stepsam in class 25 (clothing). At 1 March 2004, there has been no appeal filed with the Full Federal Court.


May, 2004
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Postby Dark-Samus » Fri Jun 19, 2009 3:10 am

First of all this doesn´t make sense.
If the "original" author´s story got stolen then he should have sued her when the book first came out.
Not 100000years later.
Stupid greedy people.
And whether it is his or not he can blame himself for being so careless. :roll: :roll: :roll:
Truth doesn´t control you, you control it...
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Postby Aquatank » Fri Jun 19, 2009 9:17 am

Kinda of skips over the issue of basically "re-imagining" Jill Murphy's- Worst Witch series of books (staring in1974) with a 1998 TV series.
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Postby jdchaser » Fri Jun 19, 2009 10:35 am

[color=#FF0000]I'm surprised the H.P. franchise doesn't have it's own t.v. series. Then again it probably would take away from the feeling of the movies.

But then again with the title, if I remember right, there is a show coming on tomorrow night with a H.P. and something to do with a Wizard....

Unless it mentioned that on the news and thought it was a comercail.[

Though with that one person mentioning why they waited so long to sue, I think it's because they decided that after J.K.'s last lawsuit. (Just a guess, and possibility)/color]
Why are you hiding the truth from me when I can see it in plain sight? The only thing this proves is how blind you really are.
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Postby Dark-Samus » Fri Jun 19, 2009 1:29 pm

Then again, how many movies,books and stories are not so similar from one another anyway.
Same with Music.
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Postby Questioner101 » Fri Jun 19, 2009 2:35 pm

Waiting for descendants of King Arthur, and all the other Knights of the Round Table, to throw in their lot to the lawsuit.
"I'm disinclined to acquiesce to your request."
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Postby rath » Sat Jun 20, 2009 6:31 am

Dark-Samus wrote:First of all this doesn´t make sense.
If the "original" author´s story got stolen then he should have sued her when the book first came out.
Not 100000years later.
Stupid greedy people.
And whether it is his or not he can blame himself for being so careless. :roll: :roll: :roll:



he's dead.


he died like 20 years ago.
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Postby Lashmar » Sat Jun 20, 2009 6:58 am

rath wrote:
Dark-Samus wrote:First of all this doesn´t make sense.
If the "original" author´s story got stolen then he should have sued her when the book first came out.
Not 100000years later.
Stupid greedy people.
And whether it is his or not he can blame himself for being so careless. :roll: :roll: :roll:



he's dead.


he died like 20 years ago.


That’ my point. You post so much `information` nobody can be bothered to read through it all. :roll: :lol: :lol:
Read between the lies
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