Harry Potter fails test of legal wizardry -
Summary: Article:
Thanks to
The Age
It was not the Ministry of Magic but the Federal Court that delivered a howler message to entertainment giant Time Warner yesterday.
Justice Murray Wilcox found that the company did not have a monopoly on the moniker Harry Potter, finding in favour of clothing chain Wombat, which devised the "harry potter" label nine years ago.
Wombat co-owner Clair Jennifer, said she came up with the harry potter name in 1994 (three years before the first Harry Potter book was published), thinking it was a good label for women's wear. When she tried to register the trademark, she was told that, as it was also possible it could be a real person's name, she would have to get it known before it could be registered.
When she applied to register it four years later in February 1998, Justice Wilcox said that only a "handful of copies of J. K. Rowling's first Harry Potter novel had been released in Australia, whereas many thousands of people are likely to have visited Wombat stores . . . a proportion of which would have noted the harry potter label on garments".
The company has 17 stores nationally, and in 1998 had a gross trading profit of more than $4 million. Time Warner was ordered to pay legal costs, which Ms Jennifer said ran into "hundreds of thousands of dollars".
advertisement
advertisement
"This is a definite story of a huge multinational trying to squash what they thought was a small business in Australia. What they didn't understand was our actual size - we are national and very well-known in our industry," said Ms Jennifer, who was Australian young entrepreneur of the year in 2001.
Justice Wilcox said: "Although it may be accepted that a person who first hears the name Harry Potter today . . . would most likely think of the J. K. Rowling character, it seems to me unlikely that a person seeing the 'harry potter' label on clothing in a Wombat boutique would assume a connection."
Justice Wilcox said he understood that Time Warner had not granted a licence for Harry Potter clothing merchandise in Australia.
A spokeswoman for Time Warner declined to comment on whether the decision meant that it would be unable to sell its range of clothes in Australia.
