For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Thursday, 6 October 2005

EURODEFENCE STRUCK OUT; WIPO PATENT INITIATIVE; BYE-BYE ALICANTE


1 Another Euro-defence fails

The IPKat picked this up off the subscription-only All England Direct service: it's a Chancery Division decision of Mr Justice Warren last Monday in Sportswear Co Spa and another v Sarbeet Ghattaura (trading as GS3) and Stonestyle Ltd [2005] EWHC 2087 (Ch).

The Sportswear claimants were the owner and UK distributor of the STONE ISLAND trade mark for clothing. GS3 sold clothing bearing the first STONE ISLAND mark, but with the labels and swing tags having been cut out or defaced. Those labels included codes that identified the distributor or customer to whom Sportswear originally sold its clothing (which was genuine and had been first marketed by Sportswear in the European Economic Area). Sportswear argued that the removal of the labels damaged the garments and that customers purchasing genuine Stone Island clothing did not expect to purchase garments with missing or mutilated labels. GS3 opposed the proceedings, relying on (among other things) Article 81 of the EC Treaty (which renders void certain anticompetitive agreements).

In these proceedings Sportswear applied to strike out certain paragraphs of the defence, which GS3 sought to amend. Sportswear argued, among other things, that even if it were in breach of Article 81, the fact of such a breach would not in any event provide a defence to trade mark infringement.

Warren J ordered that the contested parts of the defence be struck out. In his opinion, whether Sportswear was a party to agreements that breached Article 81 was irrelevant since there was no nexus between the alleged breaches of Article 81 and Sportswear's bringing of this action for trade mark infringement.

The IPKat believes that the UK courts are becoming increasingly impatient at the raising of Euro-defences and that they will increasingly be chopped before trial.


2 New world patent order on the horizon?

A recent World Intellectual Property Organization (WIPO) press release announces moves towards what may eventually turn out to be a new Substantive Patent Law Treaty (SPLT). There will be a three-day meeting early next year in Geneva, to thrash out some of the key issues: the idea is to achieve greater convergence of national laws, particularly those concerning grant and validity. The closing date for adding topics to the agenda is 15 November 2005, so anyone with specific ideas had better start lobbying his government fast.

The IPKat welcomes all discussions that have as their end the establishment of convergence, the reduction of red tape and the greater predictability of the behaviour of the patent system from the point of view of its users. Merpel adds, but what sort of convergence are you likely to get when most countries' patent systems are only there to protect foreign inventions and there's no local interest to protect except the interest in taking money from foreign users of the patent system?


3 Bye-bye Alicante

The IPKat has just read that global law firm Linklaters is closing its Alicante office and relocating its Community trade mark and Community design work to its Madrid office. The IPKat has mixed feelings about this. Strictly speaking, no firm need maintain an office in Alicante, since the Office for Harmonisation in the Internal Market (OHIM) has a strong electronic presence and does not require applicants or opponents (or their representatives) to be there in person. On other other hand, Alicante's practitioners and OHIM employees have developed something of a collegiate atmosphere in which legal issues are studied in depth and insights shared.

9 comments:

James Heald said...

More on the politics of the WIPO decision from the FT:
http://news.ft.com/cms/s/d9df2bfe-3605-11da-903d-00000e2511c8.html

The trilateral (USPTO/EPO/JPO) countries want to restrict discussions only to the definition of prior art, grace period, novelty and inventive step (ie focussing on what is most quickly achievable). But developing countries have been concerned that that would leave many of the issues of most concern to them shelved indefinitely (for example, origins of genetic material in patent applications, use of tradional knowledge, and issues of patentable subject matter; as well as provisions on the transfer of technology, anti-competitive practices, and flexibility in respect of national policies as currently allowed by TRIPS).

The deal seems to be that they have put this opposition on hold for the time being; in return for the USA (and also Europe to a lesser extent) putting on hold /its/ opposition to the "Development Agenda" thesis, that the purpose of WIPO should be to promote growth and development, rather than just more IP rights for their own sake.

So all plain sailing from now on? I'd very much doubt it...

Shanah tova,

James Heald.

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