For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Sunday, 31 July 2005

AT LAST ... SOME EVIDENCE THAT ALTERNATIVE FORMS OF LEGAL PROTECTION SOMETIMES WORK


Sitting as a Deputy Chancery Division Judge last week, Roger Wyand QC was faced with a battle over 'personal harmonisers' in Sales v Stromberg [2005] EWHC 1624 (Ch). Personal harmonisers are used in complementary medicine, being decorative articles worn as pendants and which contain allegedy energised or ‘imploded’ water treated by a process that involves centrifuging. Stromberg sold ‘Vortex Energisers’, cone shaped copper-tube spirals containing imploded water. From February 2003 Stromberg and another defendant traded as the Centre for Implosion Research; a third defendant handled the Centre's international sales. In 1997 Sales, a kinesiologist, contacted the defendants to find out more about imploded water and its uses. After they sent Sales a prototype of a personal harmoniser (illustrated below), he sent them the details of designs; they in turn undertook that they would not use the designs without the Sales' agreement.

The designs which Sale sent were rough sketches (illustrated here, top right) of, inter alia, a double spiral design called ‘Infinity’ and a triple spiral design called ‘Trinity’. When the defendants told Sales they planned to make and sell personal harmonisers under the Infinity and Trinity designs, he asked for a royalty of 10% of each sale. The defendants offered him just £200 in consideration of the designs, saying that they had been developing personal harmonisers similar to his ones even before he contacted them, these being based on ancient designs used by mankind throughout the ages. Sales sued for breach of confidence and for infringement of unregistered design right under the Copyright, Designs and Patents Act 1988. The defendants said the rough sketch setting out the designs was not a 'design document' within the meaning of the 1988 Act and denying infringement even if it was such a document.

Roger Wyand QC ruled that, on the evidence, Sales' claims for design right infringement and breach of confidence succeeded in respect of the Infinity design but failed in respect of the Trinity design. In his judgment he held as follows:

* Sales' designs were original in a copyright sense and were not commonplace.

* design right subsisted in the rough sketch since it was a design document.

* As to the Infinity design, there was an unbroken chain of causation that ran from the submission of Sales' design documents, through the prototype made to that design, to the final commercial product. Since the defendants’ products were basically the same as Sales' for Infinity, they were infringing articles;

* Since the Trinity design was not clearly the same as that which was shown in the design document, the claim for infringement of that design failed.

The IPKat is thoroughly sceptical about a lot of so-called complementary medicine. He is a little less sceptical about design right which, on the empirical basis of this case, works 50% of the time.

More on personal harmonisers here and here
More on kinesiology here
Check this out on Quackwatch here

15 comments:

Alan Sales said...

Design Rights Litigation against Jonathan Stromberg, Dolly Knight and Centre for Implosion Research International regarding the manufacture sale and distribution of Personal Harmonisers

Judgment on the above case was handed down in the Royal Courts of Justice Strand on the 27th July 2005 by Justice Wyand in connection with the litigation I brought against the above individuals and company concerning my design rights and breach of trust and confidence on the Personal Harmonisers which I designed in 1998 for the purposes of carrying imploded water, this litigation took over two and half years to be brought to the High Court with vast and substantial sums of monies being spent on legal fees in the action.

The judge found in my favour completely and we won on 18 of the 20 points of law that were bought in the action on the Twin Personal Harmonisers now manufactured today by the above individuals.

Although my original concept and ideas were clearly found to be the basis of the Triple Harmoniser now sold today by CIR I unfortunately have no protection in law in terms of the design rights copy aspect due to the slight change made to overcome the earlier manufacturing problems of the original two piece design. Furthermore hybrids now sold by CIR I personally feel would also fall into the same context also in view of the original twin shape which I designed which forms the basis of all the derivatives thereof.

The full judgement will be reproduced on my web site www.harmoniser.com

A further hearing is due in September this year to ascertain the Injunctive relief that we seek from the courts against the individuals concerned and CIR plus the full extent of damages or an account of profits from the breach and repayment of the extensive costs I have sustained in having to reluctantly bring this matter to the High Court --- we have in the meantime waived our rights to “flagrant damages” in the action and currently at 5th August 2005 CIR have not applied for a license in respect of the Design rights judgement and therefore continue to be in breach along with all the wholesalers distributors and customers of CIR by virtue of the judgment, distributors may be breaching my design right, as the sale of these goods is classified as a secondary infringement of it under section 227 of the Copyrights, Designs and Patents Act 1998 ("CDPA").

As the original designer of the twin harmoniser which incidentally has been a best seller for CIR I feel I have produced many good designs for products over the years see www.healingtuningforks.com unfortunately in this particular instance of the harmonisers designs I was never given any meaningful remuneration, recognition or mention at any time for my contribution and work by either CIR Stromberg or Knight on websites or publicity --- its almost as if I never existed I therefore brought this case to redress this injustice not just for me but all designers who get no recognition or remuneration whatsoever for their efforts.


Alan Sales --- KFRP, Diplomate ASK
Professional Kinesiologist
Institute of Cyberkinetics

Al;an Sales said...

Further comments by Alan Sales

My acting solicitors have asked me to point out the following :-

Neither Stromberg, Knight or CIR have made any attempt so far to negotiate the terms of a "License of Right" for the manufacture sale and distribution of the the Twin harmoniser product designed by me as of todays date 10th August 2005.

The judge found completely in my favour on the Twin Harmoniser design and found in my favour on some of the Issues on the Triple Spiral design in terms of it having a direct casual connection from my ideas and concepts and design drawings being the basis of the present Triple spiral which was amended slightly due to a manufacturing problem only.

What I regarded at the outset to be a spurious and cynical counterclaim launched against me by the Defenedants failed and was dismissed in its entirety and rightly so!

Final personal comment from me as the designer of the Twin Harmoniser --- If you know anything about Universal Energy and Spiritual Karma you will know that "what goes around always comes around in th end " --- none of the CIR products that have ben sold up to date have been blessed by me as the original designer due to the actions of the defendants in this case they have all been tainted by the whole saga and unfortunately continue to do so by the looks of things at todays date.

Alan Sales said...

Further Update from Alan Sales

This predictable development arrived late but as expected:

I have been advised by CIRs solicitors on 12th August 2005 that the defendants as a result of the court case have now decided the following quote " Our clients have ceased manufacture of the double personal harmoniser and are in the course of phasing out further sales of this item "

One can only assume that this has been done presumably to ensure that I receive no further royalty payments al all on future sales of this best selling product for the company oh well never mind --- Meanwhile I wait in anticipation for the next CIR, Stromberg and Knight very predictable tactical move in the ongoing saga ?

Alan Sales

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