The chances of walking into a newsagent to buy a copy of a current affairs magazine and walking out with an 11,000 car are remote.
But potential confusion sits at the centre of a European legal row over whether Ford has the right to use the name “Focus” to launch its replacement Escort in the German market (MW March 26).
Ford says it has. It claims to have registered Focus as a trademark in more than 100 markets. In the UK, it has two separate registrations, dating from 1993 and 1996. But German publisher Burda Verlag Holdings says the car company’s use of the name infringes the trademark it holds on its weekly current affairs title of the same name.
Focus magazine has built a weekly circulation of more than 700,000 in the five years since its launch and now ranks third after the better-known news magazines Stern and Der Speigel. The group, which also publishes women’s magazine Freizeit Revue and general interest titles Bunte and Super Illu, accounted for 12 per cent of all advertising revenue spent in magazines in Germany last year.
On the surface it seems a ridiculous case. But the row could force Ford to change the car’s name in Germany, undermining its positioning as a “global” brand.
Trademarks are highly prized in Germany and the attorney working for Burda claims Ford’s registration of the Focus name in the automotive class 12 is “pending”, rather than complete.
The Germans are keenly protective of their trademarks. This sensitivity is partly historical. As a result of the reparations paid after the First World War, some German companies lost ownership of certain trademarks – for instance, the Persil brand name was transferred from Henkel to Unilever.
Cornelia Inderst, the attorney acting for Burda, says she is drafting a writ to be served in the German courts even though the magazine and car are obviously in very different business sectors. Burda is claiming any advertising for the car will also cause confusion. The magazine has previously run a campaign with the strapline “fact, fact, fact” and says it is concerned that the impact of the advertising could be diluted by the arrival of the car.
“We want Ford to stop using the Focus trademark,” says Inderst. “It is well known in Germany and will confuse consumers. If we have the trademark for the magazine we need to protect the name. We have already been asked if we are in co-operation with Ford and we will sue it in the next few weeks.”
But trademark specialists are sceptical of the claim.
“From the information available I cannot see the German magazine succeeding,” says Penny Nicholls, a partner at law firm D Young & Co. “It faces an uphill struggle. There is a provision that says if you have a well-known trademark, and if somebody else uses it in a different situation, you can ask for an explanation. But it is difficult to see how the magazine’s reputation could be damaged by an association with the Ford Motor Company.”
Another trademark expert believes Ford’s position as a major advertiser will affect the final outcome, adding that the company could threaten to pull its ads. “There does not appear to be a case of confusion here. But there is a feeling among some trademark lawyers in the European Union that there are some countries where domestic trademark legislation favours companies in those countries – Germany is one such country. Therefore there is a possibility that the case could be won in the lower German courts.”
Ironically, there are also Focus magazines in the UK and Italy, owned by the German publisher Grner & Jahr, which has no plans to pursue any action against Ford. In fact there are more than 140 registered users of the “Focus” name in the UK patent office in Cardiff. Other companies with a legal right to use the name, under different classifications in the UK, include Courtaulds, ADT Services and the German household products company Benckiser.
Ford spokesman Don Hume says the car company has not yet received any legal complaint from the German magazine. But Ford is aware of the legal threat. “We don’t believe there is any legal case to answer. There is no relationship between what it does and what we do,” says Hume. But Burda may raise the issue of Ford’s own customer magazine, called Ford, published by the William Reed Group and distributed in the UK, to claim that it does have some publishing interests.
Ford’s major concern will be if the row causes any delay to the October launch of the Focus – the latest, and arguably most important, of its global car launches. Its name was revealed just four weeks ago after months of debate, involving a joint team from Ford and the branding consultancy Interbrand Newell & Sorrel, which threw up other possible names including Fusion and Icon. The car goes on sale in October and has sales targets of more than 100,000 in the UK alone.
The legal row may prove to be a sideshow. But it is a potentially explosive one for Ford.
Even if Burda fails to force a change of name on the new model, it may succeed in delaying the car’s launch, which could be just as damaging for Ford.