|Also Matthew enjoys spending time creating |
cute papercuts for his human.
But, please, don't ask him to clean
Passionate about IP! Since June 2003 the IPKat weblog has covered copyright, patent, trade mark, info-tech and privacy/confidentiality issues from a mainly UK and European perspective. The team is Birgit Clark, Merpel, Jeremy Phillips, Eleonora Rosati, Darren Smyth, Annsley Merelle Ward and Neil J. Wilkof. You're welcome to read, post comments and participate in our community. You can email the Kats here
|Also Matthew enjoys spending time creating |
cute papercuts for his human.
But, please, don't ask him to clean
|The English cat's ideal|
home is his castle ...
Ideal Home Show, remains so today. Around 12 years later, in 1920, to the intense irritation of Lord Northcliffe, Odhams Press launched a magazine called Ideal Home. The magazine, too, was a success and also remains so today. The use of the words 'Ideal Home' by both parties in the home interest sphere has been widespread from the outset of both businesses.The defendant didn't get its own way entirely, however, since its challenges to the validity of IPC Media's trade mark based on its use being liable to be prevented by an earlier unregistered mark under s.5(4) of the Trade Marks Act 1994, on the mark lacking distinctive character and on non-use, were dismissed.
“The bringing together for the benefit of others, of a variety of house wares, domestic electrical goods and appliances, garden equipment, plants and furniture, home furnishings, lighting apparatus, enabling customers to conveniently view and purchase those goods from catalogues by mail order or by means of telecommunications including via the Internet and television shopping.”Ideal Home Show Shop, in mid-2012.
John Baldwin QC, sitting as a Deputy Judge, rejected the claim on the basis that, since about 1920, the name 'Ideal Home' as a trade mark in the home interest field has signified either the business of the show or that of the magazine, depending on the context in which it was used. The judge concluded that any confusion caused by the show’s use of Ideal Home Show as a trade mark for online retailing is no more than might be expected to result from the long concurrent use of the name.
In the context of long and widespread use of 'Ideal Home' by both parties, the judge considered the extent to which the parties had sought to make it clear to consumers that their respective businesses were not connected. The December 2013 edition of Ideal Home magazine thus bears a notice on its front and its back to the effect that the magazine contains the opportunity to obtain “2-FOR-1 Ideal Home Show At Christmas Tickets” and includes various material promoting the show, but nothing about IPC Media having a stand there or being otherwise unconnected to the show. The judge held that the content of Ideal Home magazine presented to the consumer a positive indication that the magazine and the show were connected with each other in a material way".
Snowy's ideal home wasn't so ideal after all
when he found his friends were allergic to pollen
|Rep Bob Goodlatte|
“It is clear that the abuse of the patent system is stifling innovation and putting a drag on our economy. The trolling has gotten out of control, and it’s time to act".
The court shall award, to a prevailing party, reasonable fees and other expenses incurred by that party in connection with a civil action in which any party asserts a claim for relief arising under any Act of Congress relating to patents, unless the court finds that the position and conduct of the non prevailing party or parties were reasonably justified in law and fact or that special circumstances (such as severe economic hardship to a named inventor) make an award unjust [Here comes the loser pays rule, yells Merpel].
This moggy has been posting a lot about the Unified Patents Court (and indeed the Unitary Patent) this year. He tries not to post every little development, but now a few have come along and it seems time, dear readers, to give a little update.
Alas the wheels of EU legislative process are largely hidden from mere moggies and it is not always easy to see what is going on until after the event. But on Friday there was released this Press Release from the European Commission, announcing that "Justice Ministers have today reached agreement in record time on a European Commission proposal to complete the legal framework for Europe-wide patent protection." This is the need to amend the Brussels Regulation to accommodate the UPC framework. This hurdle required to implement the UPC was reported by the IPKat back in January, but generally does not seem to have received the attention it deserves. Speculation that the necessary amendments would take some time to achieve, although not ill-founded, now probably needs updating since the reported agreement has been reached in "record time".
According to the press release, "The Parliament’s Legal Affairs (JURI) Committee is expected to vote on its report in February 2014, with a final plenary vote expected the following month." So this is all likely to be done and dusted rather quickly. This amending legislation is largely technical in nature, so it is not likely to be the forum for controversy over the UPC and the Unitary Patent as such to be aired.
Naturally the press release contains the usual misleading drivel. At this paragraph the IPKat wept:
The figures speak for themselves. In the United States, in 2011, 224 000 patents were granted, in China 172 000 while in Europe only 62 000 European patents were delivered. One reason for the difference is the prohibitive cost and complexity of obtaining patent protection throughout the EU’s single market. At present, someone seeking to obtain Europe-wide protection for their invention has to validate European patents in all 28 EU Member States. The patent holder may become involved in multiple litigation cases in different countries on the same dispute. But this will change in the near future thanks to the agreement on the unitary patent package.
|Legal in South Africa?|
"As of 6 December this year you will no longer see a nurturing mother feeding her happy baby a bottle of formula milk as an advertisement in any newspaper, magazine, on a website or on television. In fact, you will not see the names of any brand or logos of infant formula, follow-up formula or powdered milks, or feeding bottles, teats and feeding cups for infants being promoted anywhere. Well, you will still see the names on the products as you are standing in front of the shelf in the supermarket and wondering which product is the best option for your little angel. You will have to try and make sense of it all on your own, however, since you will not be allowed to ask your health care practitioner for advice on your options. The manufacturers of these products will also not be allowed to give you any information or advice on infant nutrition.
"On 6 December 2013 regulation 7 of Regulations R991, relating to foodstuffs for infants and young children will come into operation. Still yet to enter into force, however, are regulations 2 to 6 of R991, scheduled to happen on 6 December 2014. After this date, you will no longer see any pictures on any infant and follow-up formula, infant or follow-up formula for special dietary or medical purposes; liquid milks, powdered milks, modified powdered milks, or powdered drinks marketed or otherwise represented as suitable for infants or young children; feeding bottles, teats and feeding cups with spouts, straws or teats or complementary foods (the “designated products”). ...
Where have you heard about something like this before, I hear you ask? Plain packaging for tobacco products of course, and maybe for alcoholic beverages too. You can see the clear link with baby food, can’t you?
On 6 December 2012 the South African Minister of Health, Dr Aaron Motsoaledi, published regulations in terms of s 15(1) of the Foodstuffs, Cosmetics and Disinfectants Act, 54 of 1972. In terms of these regulations a number of restrictions are placed on the labelling, advertisement and promotion of the designated products. ... The purpose of these regulations, or so it has been explained by the Department of Health, is to promote breastfeeding. At the time of the publication of the regulations in December 2012, the Department of Health’s Director for Nutrition explained that exclusive breastfeeding rates in South Africa is at an all-time low of 8% and infant mortality rates stand at 40 per 1,000 live births. As a result
“South Africa needs to put into place a comprehensive legal framework that protects parents and health professionals from aggressive or inappropriate marketing of breast milk substitutes”.
It can therefore be assumed that regulations R991 form part of this “legal framework that protects” consumers. ...
Regulation 7 of R991 prohibits promotional practices in respect of infant and follow-up formula, and other powdered milks or powdered drinks marketed or otherwise represented as suitable for infants or young children; feeding bottles, teats and feeding cups with spouts, straws or teats; or any other products that the Minister may publish by notice in the Gazette. Despite the fact that regulation 1 provides a definition of what it means to “promote”, regulation 7(2) describes the list of prohibited practices to include, inter alia, sale devices such as rebates, benefits in kind, kickbacks or any other pecuniary advantages, special displays to promote sales, advertisements about the availability of the product at a specific retail outlet and the price of the product, tie-in sales, discounts in any form, competitions with prizes, or any other incentives and gifts. The list goes on: no “direct or indirect contact between company personnel and members of the public in furtherance of or for the purpose of promoting the business of the company with regard to the products referred to in sub-regulation 7(1)” and for purposes of these regulations “indirect contact” specifically includes internet sites hosted on behalf of a South African entity or an entity that does business in South Africa, television and radio, telephone or internet help lines and mother and baby clubs but excludes contact in regards to product quality complaints and adverse events; no distribution of any information or educational material on the nutrition or feeding of infants and young children; no promotional items such as stationery, T-shirts or other items of clothing etc that refer to the designated products; no exhibition of the brand name of a designated product when used at any event for the general public; and no advertisements anywhere. ...
Regulation 7(4) prohibits any manufacturer, distributor, retailer, importer or person on behalf of such, from producing or distributing any educational material on infant and young child feeding that promotes any of the identified products. Regulation 7(5) extends even further by prohibiting any of the above-mentioned persons from producing, distributing or presenting educational information relating to infant and young child nutrition.
Other strict requirements regarding the labelling and packaging of the designated products are found in regulations 2 to 6. ... The company logo and brand name will be permitted, provided that they do not contain a picture of an infant, young child or other humanised figure. The label of the relevant products may also not refer to, or promote or advertise any other designated product. Any incentive, enticement or invitation of any nature, which might encourage consumers to make contact with the manufacturer or distributor of a designated product which might result in the sale or the promotion of a designated product for infants or young children, is proscribed from appearing on the label or in the marketing of such a product. Apart from other strict instructions relating to the appearance and wording of the labelling, the regulations also contain a mandatory provision that the words
“[t]his product shall only be used on the advice of a health professional”
shall appear on the front main panel of the label of a designated product. This is followed by an instruction that a prominent statement printed in bold letters of at least 3mm in height stating “USE UNDER MEDICAL SUPERVISION” shall also appear on the label. Regulation 4(3)(b) prohibits the use of expressions or names that may be understood to identify the product as suitable to feed infants. ...The blogpost goes on to examine arguments that these restrictions are not only a contravention of the constitutional protection of property under South African law but also infringe the principle of freedom of commercial speech [says Merpel: it would be foolhardy to ignore the constitutional dimension to IP law in South Africa in light of the ruling of the country's Constitutional Court in SABMiller v Laugh It Off, the famous 'BLACK LABEL/BLACK LABOUR' dispute, noted here. But we don't yet know how far that court will protect freedom of speech by brand owners rather than against brand owners ...].
|Like all good undergraduates, Binkie soon|
learned how to look attentive even when
his thoughts were far, far away ...
|Phonetic similarities can actually be fun ...|
|... which is more than can be said for the|
legal reasoning generated by EU TM law
|Lucky CJEU stagiaires get to play |
with the forklift ...
|Merpel: too modest to stand|
for election this time round ...
Four candidatures for the post of Director General of the World Intellectual Property Organization (WIPO) were received by 5 p.m. (Geneva time) on December 6, 2013, the deadline fixed [always a little squeamish about choice of vocabulary, this Kat prefers not to see the word "fixed" in the context of elections and competitive appointments] for the submission of names.The first-named candidate, Francis Gurry, is the incumbent Director General and the only one of the four to have his own Wikipedia page (here), though this Kat suspects that it won't be long before the others are there too -- and that there will be a good deal of blogging, Tweeting, Facebooking and general activity on the social media as interest increases in all four and in their respective messages and manifestos, even though the decision is made by WIPO Member States and not by
The candidates are (in alphabetical order of names of candidates): Mr. Francis Gurry (Australia), Mr. Geoffrey Onyeama (Nigeria), Mr. Jüri Seilenthal (Estonia), and Mr. Alfredo Suescum (Panama).
The WIPO Coordination Committee, which is composed of 83 member states, will meet on March 6 and 7, 2014 to nominate a candidate for appointment to this position by the WIPO General Assembly, which is scheduled on May 8 and 9, 2014.
The process of selecting a Director General is governed by the Convention Establishing the World Intellectual Property Organization and “The Procedures for the Nomination and Appointment of Directors General of WIPO,” adopted by the General Assembly of WIPO in September 1998.
* Recommended by the European Patent Office as reading material for candidates for the European Qualifying Examinations 2013
* Listed as a "Top Legal Blog" in The Times Online, March 2011
* One of only two non-US weblogs listed in the 2010 ABA Journal Blawg 100
* Court Reporter Top Copyright Blog award winner, November 2010
* Number 1 in the 2010 Top Copyright Blog list compiled by the Copyright Litigation Blog, July 2010
* Selected by United States Library of Congress for inclusion in its historic collections of Internet materials related to Legal Blawgs 2010
* Top Patent Blog poll 2009: 3rd out of 50 in the "Favourite Patent Blog" poll and 2nd out of 50 in the "Most-read" poll
* ComputerWeekly IT Law and Governance Blog of the Year 20 August 2008
* Best of the Blogs, Times Online, 21 August 2008
* Listed as one of Managing Intellectual Property magazine's Fifty Most Influential People of 2005 and again in 2011