It appears that Toyota may have got the jump on Jetstar by filing a series of trade mark applications to protect its well-known “Oh, what a feeling!” jump which has been used by the car maker since the 1980s to promote its vehicles. Jetstar – which, since launching in the early 2000s, has also used star-jumping actors to promote their airline – looks set to challenge Toyota’s right to protect its jump.
Toyota made a series of trade mark applications earlier this year to protect its “Oh, what a feeling!” jump. If you don’t know what the “jump” is, check out some of these Toyota TV commercials on YouTube.
An example of Jetstar’s star-jumping actors is also available on YouTube (see the 0:33 mark):
Toyota’s applications, in class 12 (for motor vehicles, as well as parts and accessories for motor vehicles), include numerous “jumping silhouettes” (like this boy and this girl) and, most interestingly, a movement mark for the actual “jump sequence” – the application describes the jump sequence as “[a] boy leaping into the air from a standing start extending his arms and legs out to sides at the same time while in mid air and forming a star shape”. Toyota’s application for the movement mark reflects a trend in recent years for creative companies (and their lawyers) to push the boundaries of what has been traditionally thought to be a trade mark. It is now possible to register these “non-traditional” marks to protect shapes, colours, sounds and scents, as well as movements, tastes and textures.
Jetstar has already lodged a notice of opposition in respect of one application which depicts the silhouette of a boy with his arms and legs outstretched, forming a star shape. Jetstar’s notice will presumably question whether or not this jump has the capacity to distinguish Toyota’s business from others, and whether the application is likely to deceive or cause confusion (pursuant to sections 41 and 43 of the Trade Marks Act) – or, in other words, what is a jump? And when is a jump distinctively different from another jump?
The opposed application is one of many different “jumps” which Toyota is seeking to protect. These jumps are quite varied in terms of the poses struck by the silhouettes. Some of Toyota’s other applications, for example, depict silhouettes of the “more-traditional” Toyota jump (with arms outstretched to form a “V” and legs kicked back behind the body) or silhouettes that are reminiscent of the dancers used by Apple to promote its iPods (like this girl).
We understand that the deadline for opposing Toyota’s application for the movement mark is less than a month away and we suspect, given Jetstar’s opposition to the jumping boy silhouette and this silhouette’s similarities to the movement mark (and the “Jetstar jump”), that Toyota would be expecting to receive Jetstar’s notice of opposition.
So, what’s our suggestion? Well, if there is something which you think has the capacity to distinguish your business (from your competitors) and which you think is worthwhile protecting, then jump to it – a registered trade mark can be a great way to protect the distinctive aspects of your business and is an important tool if you are trying to stop copycat competitors.
Equally, it is important to keep an eye on the trade mark register for trade mark applications which resemble a distinctive element of your own trade indicia. This enables you to test (by the opposition process) the veracity of such applications to ensure they don’t over-reach and potentially limit your own marketing activities. Likewise, and we say this generally because we don’t know the fate of the Toyota/Jetstar stoush, another benefit of watching the trade marks register in this way, is potentially to open negotiations with one’s opponent to see if a solution is possible. For instance, it might be the case that Toyota and Jetstar can negotiate an outcome which means that Toyota can register its marks, but in such a way that Jetstar’s own use of the “jump” device is carved out and permissible. Even in scenarios where the parties’ positions might seem intransigent, a “win-win” is still possible, just so long as the lines of communication remain open.