The IPKat has just stumbled across a rather useful facility on the ITMA website. Video recordings of ITMA's evening sessions (including the controversial talk given by Lord Justice Jacob) are available online, together with accompanying Powerpoint presentations.
The IPKat is pleased to see that the Intellectual Property Institute, together with the British Literary and Artistic Copyright Association, is holding an afternoon seminar on the ruling in Oakley v Animal [2005] EWHC 210 (Ch). IPKat readers (see blog, 23 February 2005)) will instantly recall that this is the case in which Peter Prescott QC stunned the unsuspecting world by suggesting that the UK's Design Regulations 2001 were both unconstitutional and in breach of EU law since they were implemented later than the cut-off date for implementation mentioned in the Design Directive.
Fibre Fashion reports that South Africa's Constitutional Court ruled last Friday that T-shirt maker Laugh It Off was entitled to use the slogans "Black Labour" and "White Guilt" on politically provocative T-shirts that were a parody of the well known BLACK LABEL trade mark for beer. This use was an exercise of Laugh It Off's freedom of speech and did not constitute a use in a trade mark sense. Nor, ruled Justice Dikgang Moseneke, was there any infringement of copyright when SAB Miller's beer slogan
"America's lusty, lively beer, Carling Black Label beer, enjoyed by men around the world"was replaced by
"Black Labour White Guilt, Africa's lusty lively exploitation since 1652, no regard given worldwide".Laugh It Off are now planning an online auction of about 1,000 Black Labour T-shirts, the proceeds of which will go to an anti-alcohol abuse charity.
The IPKat is a creature of delicate sensibilities so, when reading an OHIM decision concerning morality and the scope of Art.7(1)(f) of the CTMR, he was astounded to discover that the Office had allowed BIG COCK & device to be registered. Had the Office taken leave of their senses, sozzled by the Spanish sun? What could be the nature of this device? The IPKat hated to think, but he had to know...
When other people have been wasting their bank holiday weekend in sad pursuits like recolonising the Lost Continent of Ikea, the IPKat's great friend Tibor Gold (a partner in Kilburn & Strode) has been at his productive best, producing the following notes on two recent Court of First Instance cases on Community trade marks that have failed to make it into English. The two cases are
Case T-31/03 Grupo Sada, pa, SA v OHIM (Sadia, SA), CFI 4th chamber, 11 May 2005
The applicant’s CTM application in classes 29, 31 and 35 was for a composite mark made up of an abstract graphic alongside of which were the words GRUPO and SADA one above the other, with SADA much bigger and somewhat stylised. The intervener (opponent) opposed under Art. 8(1)(b) CTMR on the basis of its earlier Spanish registration in class 29 for a slightly stylised word mark ‘Sadia’. The Opposition Division allowed the opposition in respect of the applicant’s class 29 only, a decision upheld by the First Board of Appeal (“BoA”).
The effectively only ground of appeal to CFI was on the Art. 8(1)(b) CTMR point (=likelihood of confusion). However, the CFI found that that ground had three sub-grounds:
The appeal failed for the following reasons:(i) the BoA’s failure to take into account of the high degree of knowledge of the mark by Spanish consumers;
(ii) the BoA’s misapplication of the concept of ‘global appreciation’ in the comparison of the marks and
(iii) the BoA’s failure to take into account the significance of the fact of co-existence in the Spanish market the applicant’s three other Spanish registered marks, all of which are older than the opponent’s mark.
(i) Art. 74(1) does not permit OHIM to examine facts or arguments that have not been invoked by the parties to the proceeding.: Henkel KGaA v OHIM (LHS(UK)) (KLEENCARE) T-308/01 [2003] ECR II-3253, [2004] ETMR 1022 (74); nor will the CFI entertain the examination of evidence, facts or arguments first introduced before it: Alejandro v OHIM (Anheuser-Busch) (BUDMEN) T-129/01 [2003] ECR II-2252.Case T-288/03 TeleTech Holdings, Inc. v OHIM (Teletech International SA) CFI 2nd Chamber, 25 May 2005(ii) The CFI did not agree with the appellant’s arguments that the BoA’s approach was unduly dissective rather than making an overall assessment. The CFI affirmed the findings of the BoA (a) that the relevant public to consider is the general Spanish public, (b) that the goods are identical, and (c) that while not ignoring the graphic element and the generic word GRUPO, the dominant visual and phonetic elements to compare are the words SADA and SADIA which are the elements the average consumer will remember and which are confusably similar. The CFI cited Oberhauser v OHIM (Petit Liberto),(FIFTIES), T-104/01, [2002] ECR II-4359, [2003] ETMR 58.
(iii) It is not wholly to be excluded that in certain cases the co-existence in the market of an applicant’s registered marks earlier than the opponent’s mark may be taken into account – but only if it is duly proved before the Office that (A) such co-existence is based on the absence of the risk of confusion on the part of the relevant public, and if further (B) the co-existing marks are identical. Here the applicant’s marks anterior to the opponent’s were not identical, nor did the applicant furnish any proof of the absence of the risk of confusion. Hence the BoA was right to reject this argument.
Under (i) the appellant sought to rely on an allegation that “TELETECH GLOBAL VENTURES” was a well-known mark, the sense of Art. 6bis of the Paris Convention as well as Art. 16 of TRIPs, in the EU and above all in France, since before the date of the mark owned by the applicant for cancellation. It also tried to rely on Art. 106 CTMR.(i) Violation of the principles of co-existence and comparison of CTMs and distinctive national marks and signs;
(ii) Violation of the defendant’s rights of defence and
(iii) Misconstruction of Art. 8(1)(b) CTMR.
Never one to miss a hip and cool trend man, the IPKat couldn’t help but ponder about the issues thrown up with regard to the ownership of the copyright in the Crazy Frog ringtone/single/media empire (details from the Daily Telegraph).
*It all started when Swedish teenager Daniel Malmedahl recorded himself imitating a moped.
*The file was circulated on the and used on the Insanity Test – if you could listen to it for 60secs then clearly, you were insane.
*Erik Wernquist, another Swede, took the test and, amused by it, created the frog character which he posted on his company’s website. Wernquist didn’t know where the sound came from and put out a call for its creator to get in touch with him. A friend of Malmedahl passed on Malmedahl’s details.
*A worker at the German Jamba company saw the frog and told his boss about it. Jamba bought the rights from Malmedahl and Wernquist.
*Jamba was bought by VeriSign.
* The Crazy Frog was launched as a ringtone, mobile phone screen saver and a single.
A ding ding ding ding dididing ding bing bing pscht,
Dorhrm bom bom bedom
bem bom bedom bom bum ba ba bom bom,
Bouuuuum bom bom bedahm, Bom be
barbedarm bedabedabedabeda
Bbrrrrrimm bbrrrrramm bbbrrrrrrrrraammmmm
ddddddraammm,
Bah bah baah baah ba wheeeeeee-eeeee-eeeee!
The IPKat has come across a rare phenomenon – a design decision from the UK Patent Office. In April 2003 Alexander John Garnett applied under the Registered Designs Act 1949 (as amended by the Registered Designs Regulations 2001) to register a design intended to be applied to a “stool”. The design consists of a stool which is shaped like a giant computer key and has a word on top. The design was registered but in September 2004 Ross Byers McBride applied to have the design registered for lack of novelty and individual character. He pointed to a stool of his own that he had displayed at UK and German design fairs.
The application for invalidity failed. An applicant for invalidity must provide evidence to prove his claim. Here the applicant for invalidity’s Statement of Case set out the grounds, but he had filed no evidence and the applicant’s claim to an earlier right have not been demonstrated. The photographs accompanying the Statement of Case did not confirm use of the illustrated design at any particular date or location.
The IPKat draws his readers' attention to some bank-holiday reading. In Class International v Unilever, Advocate General Jacobs has discussed the trade mark position of goods which are in transit from one non-EU state to another but which travel via the EU.
"In the war against counterfeit and fraud, your basic and most effective weapon is the substrate your documents, packaging and labels are printed on".Is this right? Merpel, for one, disagrees: "I think anyone's best weapon is their pricing policy. Their second best weapon is having a product no-one wants to copy anyway". What do visitors to this blog think? Please post your comments and let us know.
The May 2005 issue of Butterworths' LexisNexis Intellectual Property and Technology Cases has now been published. The print edition (which does indeed have a deliciously sleek black, shiny cover), ties in with this title's online service.
The IPKat thanks Gino van Roeyen of Netherlands firm Banning for tipping him off about another adidas two stripe/three stripe case.
As no doubt all the IPKat’s readers know, adidas owns the three-stipes trade mark in the Netherlands. H&M used two stripes on its clothing in 1996. adidas’ response was to bring infringement action under (in Directive terms) Arts 5(1)(b) and 5(2) which ended up in the 's-Hertogenbosch Court of Appeal. However, adidas failed on both claims.
Regarding confusion-based infringement, the visual difference between three and two stripes would stand out to consumers and prevent them from being confused.
Regarding dilution-style infringement, the court followed the ECJ’s decision in Adidas v Fitnessworld, finding that under the relevant provision, the degree of similarity between a mark with a reputation and a conflicting sign must be such that the relevant section of the public establishes a link between the sign and the mark. Here the evidence produced by adidas did not establish this since it examined the position at present, rather than proving that consumers made a link between the two sets of stripes in 1996. However, the court acknowledged that the scope of protection of a trade mark is not static and can be affected by changes in circumstances.
rare foray into competition law by the IPKat thanks to Findlaw. American Needle held a non-exclusive licence from the American National Football League (NFL), allowing it to produce clothing bearing the trade marked emblems of NFL teams. NFL stopped granting multiple licences in its trade marks and instead granted an exclusive licence to Reebok. American Needle sued NFL, claiming that its activities constituted restraint of trade and monopolisation, both of which are illegal under the US Sherman Antitrust Act. NFL took issue with American Needle’s definitions of the relevant market, arguing that a company’s trade marks cannot, on their own, constitute a market for antitrust purposes. Though, according to the judge, that’s usually true, here the team logos could be seen as the product themselves because consumers looking for NFL clothing wanted to show their allegiance to their teams and other clothing would not be suitable for this purpose.
IPKat co-master Ilanah has just unearthed a CFI decision that she's been waiting for for ages. There's just one snag - no English translation, even though the decision was given at the end of April. At the OHIM Board of Appeal stage Ampafrance v Johnson & Johnson (BEBE/MONBEBE) discussed inter alia how to prove detriment to distinctive character (blurring to our American friends) and the degree of likelihood of detriment to distinctive character that is required in registration situations. The IPKat's limited grasp of French causes him to believe that the Art.8(5) issue wasn't discussed by the CFI but if any of his readers know better, he'd love to hear about it. Also, assuming he's right, does anyone know why the Art.8(5) claim went away?
There are now 73 cases listed on OHIM's Community Trade Mark Court Decision page, apparently drawn from seven countries. As this vertical column of cases grows longer, it becomes increasingly user-hostile.
Can any of the IPKat's friendly moles in Alicante please tell him when these cases will be accessible and searchable in a more effective manner? And can anyone tell him why OHIM needs to tell users how many KB are taken up by each of the listed cases? Is there anybody out there who is going to have problems with the size of these documents?
The Court of First Instance's decision on the appeal in Case T-352/02 Creative Technology v OHIM, Ortiz was posted today. CT applied to register the word mark PC WORK for "apparatus for recording, transmitting and reproducing sound or images, loudspeakers, amplifiers, record players, tape players, compact disc players, tuners, and parts and fittings for all the aforesaid goods" in Class 9. Ortiz opposed, citing his earlier registration of a Spanish figurative mark 
for "electronic audio equipment; loudspeakers; sound reproducing apparatus; radio, television and video apparatus", also in Class 9. The Opposition Division upheld the opposition on the ground that there was a likelihood of confusion between them; the Board of Appeal agreed. So, dismissing the appeal, did the Court of First Instance. The CFI said, in paragraphs 48-49:
"the word ‘pc’ in the trade mark applied for has a descriptive character in relation to the goods concerned, being, both in English and in Spanish, an abbreviation for ‘personal computer’. From the conceptual point of view, the distinctive element of that mark therefore consists of the word ‘works’. In the case of the earlier mark, it must be held, ... in the absence of non‑verbal figurative elements having independent evocative force, that the dominant element on a conceptual level consists of the word ‘work’.The IPKat is reluctant to take issue with so many others, but queries the conclusion that there is a likelihood of confusion -- if only on the ground that he tried to be confused, but failed.
Secondly, it must be regarded as plausible, as the applicant itself seems to recognise, that the targeted public, being made up of consumers familiar with the use of computers, has sufficient knowledge of English to understand the meaning of the word ‘work’ and to recognise its plural form in the word ‘works’".
Case T-288/03 TeleTech Holdings v OHIM - Teletech International (TELETECH GLOBAL VENTURES) has been posted on the Curia website in all of the EU's official languages except Czech, English, Italian Maltese, Slovene and Finnish. If you know what it's about, please tell the IPKat by posting a comment below.
Teach yourself Italian, Maltese, Finnish, Czech and Slovene.
On 27 May UNESCO will host a French-German meeting on exceptions to copyright law. The meetings are part of a series which take place with the collaboration fo Institut de recherche en propriété intellectuelle Henri-Desbois and the Max Planck Institut with the purpose of stimulating debate on copyright in the digital environment and to discuss the future of copyright in France and Germany. The meeting will also propose changes necessary to bring their laws in line with European requirements.
The IPKat doesn't know much about this series of meetings. He wonders if any of his readers do. Merpel thinks this sounds fun - why isn't the UK involved?
Here's a decision that came out last week while the IPKat was in mid-air (or mid jetlag): Tercica Inc v Avecia Ltd and others, a ruling of Mr Justice Mann sitting in the Patents Court on Friday 20 May. The action concerned two applications for summary judgment in linked proceedings. In the first, Tercica -- a licensee under a Genentech mammal growth patent -- was suing Avecia and Insmed for infringement; in the second, Avecia and Insmed sought revocation of that patent. The patent had a Swiss claim, its essential inventive content being not so much the invention of a new drug as the use to which an existing drug is put.
The IPKat tries out a mammal growth hormone
"What I was asked to consider (among other things) was a concept which Jacob J has called he "artificial construct of a Swiss form claim" (see Merck & Co Inc's Patents [2003] FSR 498 at para 80), and in particular what is meant by "new use" where part of that new use involves a particular method of administration, and the interface with the method of treatment point. One of the questions which might arise is: just how far can the artificiality be pushed before reality forces its way in? These are not subjects which are particularly happily determined on applications for summary judgment, even when those applications are argued as well and as fully as the one before me was".The IPKat thinks this is surely right. Swiss claims are notoriously difficult to litigate, since issues of novelty and obviousness lie at their very heart.
The June 2005 issue of Sweet & Maxwell's monthly European Intellectual Property Review has now been published. As ever, there's lots of interesting content. For example,
* there's a good article by Professor Paul Torremans (University of Nottingham) on determining which law applies to ownership and authorship disputes between employers and employees;Modesty all but inhibits IPKat co-owner Jeremy from mentioning his own piece, "Pouring Oil on Troubled Waters or Inflaming the Passions? Comptrollers' Opinions and the Quest for Happiness", which many readers of this blog read and commented on during its draft phase. Thank you, all of you, for taking the trouble to do so.
Amanda Michaels: explains that design protection is "real", not "ephemeral"
* Amanda Michaels writes an obituary for the "pattern parts" crusade following Mann J's decision last December in Dyson v Qualtex.
Quorn Hunt, the decision saying that actual detriment to distinctive character or unfair advantage to distinctive character or repute, has been settled. Thus, there will be no decision by the Appointed Person in this case.
The IPKat though sees no reason why the original reasoning by the hearing officer should be anything but correct.
Mmmm...magic mushrooms here and here
Another amazing British disaster: the first counterfeit inflatable
policeman (above) has just been sighted at Felixstowe
Consolidated version of the Patents Act 1977 here; Patents Act 2004 here; Patents Rules here
While the IPKat was away last week LexisNexis' Butterworths All England Direct subscription service picked up Venture Investment Placement Ltd v Hall, a Chancery Division decision of Deputy Judge Robert Reid QC on Monday 16 May. It was only a small case, but the point was an important one.
The Republic of Latvia is pleased to notify the IPKat that it has ratified the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs, which comes into force for Latvia on 26 July 2005.
C. Yardley Chittick, the USA's (and probably the world's) oldest patent attorney, has been awarded an honorary degree by the Franklin Pierce Law Centre, according to NPR.
Mr Chittick was 104 in October.
After trekking home from last week's INTA Meeting in San Diego, physically tired and intellectually exhausted, what did the IPKat find in his mail this morning but the Twelfth Annual International Review of Trademark Jurisprudence which is the alter ego of the March-April 2005 issue of the Trademark Reporter. 54 jurisdictions -- excluding the US, which has its own Annual Review -- are covered in its 315 pages. The IPKat can't wait to get reading, though mostly he hopes he only finds cases he already knows about ...
More about the Trademark Reporter here
The IPKat brings you hi-tech copyright news!
*The People’s Daily reports that China is bringing into force Administrative Measures for Internet Copyright Protection on 30 May. The measures are being jointly issued by the National Copyright Administration and the Ministry of Information Industry.
*The Local reports that Sweden’s Justice Minister, Thomas Bodström, has called for the Swedish Government to proceed with caution in passing new DRM laws. He has said that consumers must be able to make copies of CDs that they have bought for private use, and what’s more, the IFPI have agreed with him. The Swedish Parliament is due to vote on passing new laws in this area on 25 May.
BBC has reported that Hello! magazine won its appeal against an order of Mr Justice Lindsay that it had to pay arch-rival OK! magazine £1m in damages for using illicit ictures of Catherine Zeta Jones' wedding. Hello! admitted it used those photos to spoil rival OK's supposedly exclusive coverage (for which the latter paid quite handsomely). The trial judge's ruling that Hello! had breached the film stars' rights of privacy was however upheld, leaving it to pay the publicity-conscious couple the paltry sum of £14,600.
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The Court of Appeal yesterday dismissed the appeal in Hyperion Records Ltd v Sawkins[2005] EWCA Civ 565.
At trial Mr Justice Patten held that recording company Hyperion had infringed Sawkins' copyright in modern performance editions of the works of the obscure long-dead (and therefore out of copyright) French composer Lalande (1657-1726). Sawkins, a musicologist, carried out lots of research into his works and created new performing editions by making corrections and additions to the notation necessary to make the music playable. He also added or amended figured bass lines and corrected wrong notes, without actually "re-composing" Lalande's music and contended that this was an application of his skill and labour which was entitled to copyright protection.
Hyperion, who produced a CD of music including recordings of performances using Sawkins' scores, was happy to pay a fee for providing the performing editions but refused to pay any royalties on the basis that an editor was not entitled to copyright in a performing edition of music that had fallen into the pulbic domain. Sawkins' claim that his performing editions were original musical works was accepted at trial and by the Court of Appeal.
According to the Court of Appeal, *
* the effort, skill and time which Sawkins spent in making the performing editions were sufficient to satisfy the requirement that they should be "original" works in the copyright sense, even though Sawkins worked on the scores of existing musical works that were out of copyright and had no intention of adding any new music of his own;The IPKat had no doubt that this appeal would fail and thinks the Court of Appeal have got it right. He also notes that, although Lord Justice Jacob was sitting, the other two judges also managed to make their voices heard (in Lord Justice Mummery's case quite substantially).
* Hyperion's defence that Sawkins' work was not "music" rested on an unduly narrow view of what constituted "music" for copyright purposes, since the subsistence of copyright involved an assessment of the whole work in which copyright was claimed;
Lalonde: jukebox idol at the time of Louis XIV and XV
* Hyperion's submissions ignored the fact that the totality of the sounds produced by the musicians was affected by the information inserted in the performing editions: the sound on the CD was not just that of the musicians playing music composed by Lalande.
* if copyright subsisted in the performing editions, the performers who used Sawkins' scores reproduced the overwhelming majority of the editorial interventions marked up by him in his scores. If this was done without his authorisation, it infringed his copyright whether or not the performers included any additional material was included by the performers.
* There was a breach of Sawkins' moral right to be known as the author of his work under s.77 of the Copyright, Designs and Patents Act 1988 because the CD did not identify Sawkins as the author of the performing editions.
One very fatigued IPKat is edging towards the end of a long, hard INTA programme here in San Diego. So many points to consider:
* What the current Dilution Bill in the US will actually achieve;The IPKat is sure that these questions won't go away and looks forward to giving them some heavy thought in the near future.
* Who is supporting the Bill, and why?
* The wisdom of the ECJ leaving so much to national courts in its recent Gillette decision (on the use of the word mark GILLETTE by another manufacturer to indicate that its blades fitted Gillette blade holders). In particular, what happens if the way this is done is regarded as honest commercial use in some EU States but not others.
The IPKat notes that a reference has been made to the ECJ from Belgium concerning the point at which a mark's distinctivness must be assessed in order to qualify for the extended scope of infringement protection under Directive 89/104.
The IPKat is delighted to announce that INTA is pushing ahead with plans to develop an active Trademark Professors group. The early work has already been achieved (reduced rate membership and registration fees for academics and students; pleasantly social breakfast, etc) but there is more to do. What the IPKat wants (and what INTA wants too, it seems) is a forum where academic trade mark enthuasiasts and thinkers can come together and discuss, together with IP owners and practitioners, issues in trade mark law that bind them -- even if their political, economic and philosophical views are quite different from one another. Watch this blog for more news and contact details.
One thing the IPKat can report on is that yesterday was the day that Oxford University Press went public, announcing the forthcoming publication of a new monthly law journal, the Journal of Intellectual Property Law and Practice. JIPLP will be fully functional as from January 2006 but a "taster" is being prepared for November 2005. If you're interested in writing for it, contact IPKat co-owner Jeremy for further details.
The IPKat has been so busy at this week's International Trademark Association meeting in San Diego that he hasn't had the chance to do any serious blogging. He has however been roaming around, incognito, among the 7,500 participants, listening carefully to what they say and picking up all sorts of juicy information. He will be fully back in action next week, but in the meantime he will do his best to post things on the blog for your delectation.
A new case has been referred to the European Court of Justice. It's Case C-145/05 Levi Strauss & Co v Casucci Spa, from the Cour de Cassation, Belgium. The curia website reads as follows:
Reference has been made ... for a preliminary ruling in the proceedings between Levi Strauss & Co and Casucci Spa on the following questions:The IPKat looks particularly forward to the answer to the first of those questions: the relationship between the scope of protection accorded to a trade mark and the perception of the public has already been considered in terms of the 'principle of proportionality' (the better-known the mark, the broader the protection), but public perception of a mark is not a constant: it may vary in accordance with such factors as the nature of the use made of it by its owner or others, the presence or absence of competitors and so on. Merpel asks, why are questions to the ECJ always couched in such stiff and formal terms, and does it matter? The ECJ is quite happy to rewrite the questions so that it can give the answers it thinks the referring court should want.
* For the purposes of determining the scope of protection of a trade mark which has been lawfully acquired on the basis of its distinctive character, in accordance with Article 5(1) of Council Directive 89/104, must the court take into account the perception of the public concerned at the time when use commenced of the trade mark or similar sign which allegedly infringes the trade mark?
Levi Strauss -- and the trousers he was never photographed while wearing ...
* If not, may the court take into account the perception of the public concerned at any time after commencement of the use complained of? Is it entitled in particular to take into account the perception of the public concerned at the time it delivers its ruling?
* Where, in application of the criterion referred to in the first question, the court finds that the trade mark has been infringed, is it entitled, as a general rule, to order cessation of the infringing use of the sign?
* Can the position be different if the claimant's trade mark has lost its distinctive character wholly or in part after commencement of the infringing use, but solely where that loss is due wholly or in part to an act or omission by the proprietor of that trade mark?
Songwriter Steven Wallace is accusing Britney Spears of copyright infringement before the Indianapolis District Court according to the BBC. Wallace did not register his copyright when he wrote the song. Instead he performed a "poor man's copyright" by putting the lyrics in a sealed envelope and them posting them to himself in order to obtain a postmark. The lyrics of the two songs are almost identical and Wallace claims to be in possession of an email in which Spears admits to copying the song.
The IPKat isn't sure what the point of having a copyright register is if those who don't register are entitled to the same protection anyway.
The Metro reports that the familities of the songwriters featured in the Buena Vista Social Club is seeking compensation in the UK High Court from Peer International Corporation, who claims that it bought the copyright to various songs featured in the film in the 1930s. The families however claim that the artists were not properly paid. PIC however claims that it set up accounts in favour of the signers after US trade embargos made it possible to pay the funds directly to Cuban artists and claims that the beneficiary here would be the Cuban Government.
The IPKat thinks that this case is worth making a song and dance about...
The IPKat's friend Chris Rycroft has unearthed a delightful US patent blog: Patent Baristas. Hosted by Ohio-based Frost Brown Todd patent attorneys Stephen R. Albainy-Jenai and Karlyn A. Schnapp, Patent Baristas has been going for just a couple of weeks. Sharp, stylish, keenly-written and well-informed, this looks like a blog to watch.
... Czech, Hungarian or Maltese, but it's made its way into all the other official languages of the European Union. The IPKat is of course referring to Case T-31/03 Grupo Sado SA v OHIM, Sadia SA. It looks to him like a "likelihood of confusion" opposition. The applicant's mark is on the left and the opponent's is on the right.
Both parties deal in goods and services in Classes 29, 31 and 35.
.
Also decided by the Court of First Instance today was Case T-390/03 CM Capital Markets Holding SA v OHIM, Caja de Ahorros de Murcia. CM applied to register this figurative mark 
as a Community trade mark for goods and services in Classes 1 through to 42. The opponent challenged this, citing its earlier Spanish rights in this mark 
for services in Classes 35, 36, 38 and 42. The Opposition Division upheld the opposition in respect of certain services in Classes 35, 36, 38 and 42 on the ground that there was a likelihood of confusion between the two marks in Spain. The Board of Appeal disagreed and threw the opposition out, so the opponent appealed to the CFI.
The CFI, dismissing the appeal, agreed with the Board of Appeal that there was no likelihood of confusion, even in Spain. The fact that both marks shared the initials "CM" did not make them conceptually similar for the very good reason that the CM in each case stood for something quite different.
The IPKat agrees with this reasoning. It would be curious if, for example, in the United Kingdom the use of the letters "AA" suggested a conceptual similarity if the users were, respectively, the Automobile Association and Alcoholics Anonymous.
The Court of First Instance of the European Communities ruled today in Joined Cases T-160/02 to 162/02 Naipes Heraclio Fournier v OHIM, France Cartes SAS. Naipes applied to register these three pictures as figurative Community trade marks for playing cards:
It later appeared that these images were among 23 such marks for which Naipes obtained CTM registration. Reversing the decision of the Cancellation Division, the Board of Appeal declared the registrations to be invalid: they were both devoid of distinctive character within the meaning of Article 7(1)(b) of Regulation 40/94 and descriptive in the sense of Article 7(1)(c), in that they would be seen by the average user of such playing cards as representing characteristics of Spanish playing cards.
The Court of First Instance dismissed Naipes' appeal. In the court's own words:
"47 ... the designs of the knight of clubs and the king of swords directly conjure up playing cards for the target public, even if a section of that public is not necessarily acquainted with Spanish playing cards. All persons who have played with any type of cards identify in those drawings the representation of a playing card, given that the king and the knight are frequently used symbols on playing cards. That finding is not invalidated by the fact that the section of the public unacquainted with Spanish playing cards is not necessarily capable of making a direct connection between these drawings and the specific suit and value of each of these two cards.The IPKat, who agrees, is still baffled as to how these wretched marks could ever have been accepted for registration in the first place.
48 In any event, in the mind of the Spanish public, the drawings in question directly designate the precise suit and value of two Spanish playing cards. The potential Spanish consumer of playing cards will perceive each of the signs in question as alluding to a specific card.
49 ... as the applicant points out, although there are numerous different representations enabling cards of a certain suit to be identified, every undertaking manufacturing and marketing Spanish playing cards of necessity uses the symbols of the knight and the club to identify the card having the value 11 of clubs or those of the king and the sword to identify the card having the value 12 of swords. The applicant’s argument that there is no rule or restriction at all as to the form, suit or details characterising the figures in the Spanish pack of cards cannot therefore be accepted.
50 Moreover, ... [Article 7(1)(c)] ... does not ... require that those signs or indications should be the only way of designating such characteristics ... The possibility of designing a knight, a king, a sword or a club slightly differently therefore does not detract from the fact that the marks in question are descriptive of characteristics of playing cards.
51 Accordingly, and in particular for the Spanish public, there is a direct and specific association between the marks in question and playing cards".
If you ever thought you were clever, now's the time to put your intellect to the test. Oxford University Press has recently launched a new periodical, the Journal of Competition Law & Economics. Published quarterly and edited by Damien Geradin and J. Gregory Sidak, it promises in-depth economic analyses of competition law, together with economic papers relevant to legal theory and practice.
* Ethan Horwitz and Karen Weinberger (Goodwin Procter) explain how to wake up your dormant brands -- assuming that your brands are dormant, that is ...In addition there are features by both co-owners of the IPKat. Ilanah has written a review of the past year's key European Court of Justice decisions on trade mark registrability, while Jeremy has focused on some of the more challenging trade mark decisions in Europe's national courts.
* "Never Mind the Quality, Feel the Pinch" is a tough review of UK trade mark litigation costs by SJ Berwin's trade mark litigator Ray Black;
Ray Black: some suggestions for cheaper, quicker trade mark litigation in the UK
* David Morris (Slaughter and May) analyses issues arising in the battle between US food giant Hormel and a Dutch Antilles holding company over their respective SPAM and SPAMBUSTERS trade marks;
* Adam Jaffe and Josh Lerner, authors of Innovation and Its Discontents (Princeton University Press, 2004), make proposals for the improvement of the US patent system.
There is no English text as yet for Advocate General Ruiz-Jarabo Colomer's Opinion today in Joined Cases C-465 and 466/02 Commission v Germany and Denmark. However, it appears that the Advocate-General has advised the European Court of Justice to rule against Germany and Denmark in their attempt to keep feta as a generic term for the white cheese that is well known as, well, feta, for the very good reason that it is a generic term.
Advocate General Ruiz-Jarabo Colomer: says feta belongs to Greece alone
The IPKat is seething over two things. The first is the usual moan about the absence of an English version of this Opinion. Without it, how can he see whether this decision is founded on solid logic or political expediency? The second is the fact that so many consumers know that feta is a generic term and have always used it so: why should they have to be forcibly re-educated into giving a new (and in many cases unacceptable) meaning to a word which has been used generically by them for so long? Is this some sort of linguistic fascism, he miaows. Merpel agrees and adds, "why, if feta is given back to the Greeks as a geographical indication, shouldn't the European Union be forced to give cheddar cheese back to the English?".
The IPKat is puzzled. Is this some sort of a joke? Presumably Nike, Puma and Reebok are just as willing to shrink the scale of their own ubiquitous emblems. Merpel wonders what the IOC's position would be if the amount of money it extracted from sponsors was directly proportional to the size of logo the sponsor was allowed to use.Adidas' entire global sports sponsorship portfolio is under threat following last week's decision by the International Olympic Committee to restrict the use of the brand's distinctive three-stripe design on apparel. [...] the group of rival manufacturers that lobbied the IOC over the use of Adidas' stripes now plans to approach other sports governing bodies. The group includes Nike, Reebok and Puma. Insiders have suggested that their case is strong, given the precedent set by the IOC, which ruled that Adidas must limit its branding on apparel to a 20cm2 logo. Adidas will face a multimillion-pound bill if it is forced to restructure its entire portfolio.
The international sign of integrity? Or of cynical commercialism?
Among the sports associations thought to be on the rival manufacturers' hitlist are the IAAF (athletics), Fifa (football), ATP (tennis) and IRB (rugby). At stake are the brand's kit supply deals at events such as the football and rugby World Cups. The action could even stretch to national leagues, affecting UK deals with Chelsea and Newcastle United.
Adidas refused to comment, adding that it would only respond in the event of official action against its current use of the design.
"contains all the information practitioners need to advise their clients on domain name registration and dispute resolution;
* detailed analysis of the relationship between domain names and existing trade mark law and practice;
* in depth coverage of both the UDRP and 27 key national regimes, plus analysis of the new ".eu" TLD;
* written by an expert contributor team including specialists from the US, the UK and Germany, thereby offering a rounded and reliable treatment of the subject ;
* key developments in law and practice post-publication will be noted up on a companion website for the book, accessible to all purchasers, so as to maintain its currency and value.
This work, edited and written by leading experts in the fields of domain name dispute resolution and trade mark law from around the world, provides a comprehensive analysis of the law and practice relating to internet domain names at an international level, combined with a detailed survey of the 27 most important domain name jurisdictions worldwide, including the US, UK, Germany, France, Italy, Netherlands, Japan, China, Singapore, Russia, Canada and Australia. A particular strength of the book is its in-depth country-by-country focus upon how domain names relate to existing trade mark law, and upon the developing case-law in this field, as well as the alternative dispute resolution procedures in the respective ccTLDs.
It assembles detailed information about the registration of domain names at national, regional and international levels, analysis of the dispute resolution processes at each of those levels, and strategic guidance on how to manage domain names as part of an overall brand strategy. The authors also analyse panelist decisions under the Uniform Domain Name Dispute Resolution Policy (UDRP) and the registration procedures and alternative dispute resolution procedure for the new European top level domain '.eu'. "
The list of contributors is very impressive. Tony Willoughby provides the UK chapter; Sally M. Abel the US. Other authors and co-authors of chanpters include Pravin Anand (India), Alain Strowel ()Belgium), George Souter (Finland) and Tan Tee Jim (Singapore).
Tony Willoughby and Sally M. Abel, authors of the UK and UK chapters
At £165 this book is not a casual read, but it's pretty reasonably priced for what it is. What's more, being so heavy, it's sure to have the reader in ruptures ...
Boston Business Journal reports that iRobot, the makers of military and consumer robots is suing Uras Industrial Corp for infringement of its patent, copyright and trade dress rights in its Roomba vacuum cleaner. iRobot claims that Uras’ Koolvac KV-1 cleaner infringes its IP rights.
According to iRobot’s attorney, the Koolvac
"is a closely studied reproduction" of iRobot's consumer vacuum Roomba…IRobot
has worked very hard to build the trust with its customers that accompanies a
successful brand, and we are concerned that people may think this inferior
product is made by our company.
No – not that one…
Truth is stranger than fiction, if this little snippet from Metropolitan News-Enterprise is anything to go by.
Promotional products tied to the “Survivor” reality television series did not infringe the trade mark rights of a company already marketing beachwear and related products using the name “Surfvivor”. Judge Johnnie B. Rawlinson (Ninth U.S. Circuit Court of Appeals) ruled last week that the trial court in Hawaii properly granted summary judgment in favour of Survivor Productions, CBS Broadcasting Inc. and other entities associated with the popular show in the litigation brought by Surfvivor Media Inc. and Peter S. Deptula. “Survivor”'s producers said they knew of Deptula’s trade mark and the logos he used to promote his company’s sunscreen, t-shirts, surfboards and other items when they created logos to promote the television series. The “Survivor” logos appeared on such items as t-shirts, shorts, and hats. Both sets of logos featured graphical depictions of exotic locales, plus the words “Surfvivor” or “Survivor” in prominent type.
“In this case, although both parties portray an outdoor theme, there is noNor was there substantial evidence of actual customer confusion:
material evidence in the record that customers are likely to associate the two
products or conclude that the products come from the same source....Resolution
of this Sleekcraft factor favours Survivor”.
“A single retailer and a single customer mistook one Survivor product as Deptula’s. A survey commissioned by Survivor showed an absence of significant confusion".The IPKat mourns the loss of a wonderful business opportunity: if only the two sides could have got together, just think how they could have jointly promoted a composite brand.
"In today's competitive economy, it is increasingly difficult for companies to find unique, effective and legally available names. Unlike most naming firms, Zenmark takes a disciplined, engineering-based approach that achieves the highest quality creative product with an intense screening process. This process assures that Zenmark's clients are presented with high-quality choices that have the highest legal likelihood of being available to put into use. ... Our engineered approach combines art with science, which is entirely new to naming. By adding scientific scrutiny to the process of legal analysis, linguistic assessment and market testing, it gives clients more confidence that the names they ultimately choose will be the ideal vessels for their verbal identity and the most solid infrastructure for building brand equity".The IPKat raises a quizzical whisker at this. He recalls that Interbrand was using computers to aid its generation of brands back in the 1980s (when Interbrand was still called Novamark) and wonders how Zenmark claims to have made an advance over the prior art. Snark Hunting lists some names created by Zenmark together with those of some of its competitors ("The names of the naming companies are in bold; the names each has created using their own process are not so bold") and adds:
"On what evidence will the patent office decide that Zenmark Brand Engineering, Inc. has a process that is uniquely different than its competitors? By asking all of the naming companies listed above to supply their processes for comparison? Unlikely. Surely not from comparing the resulting names, as that would lead anyone to the conclusion that all of these naming companies have exactly the same process in place".Some Zenmark names here: Amicore, Afaria, Applimation, Azenity, Certiport, Coalogic, Palaterra, Phyve.
Mysan.de reports that the Budweiser roadshow has made it way to Austria. A Salzburg court has ruled in favour of Anheuser-Busch in a dispute between the American company and Budejovicky Budvar, the brewers of Czech Budweiser. The Czech brewers had applied to have BUD registered as a geographical indication but the court refused the application because BUD does not correspond to a place name. A similar decision was reached last year in Vienna. Furthermore, BUD was found not to infringe the Czech brewer’s Budweiser Budvar," "Budweiser Budbrau" and "Budweiser" trade marks.
Following yesterday's general election in the UK, the IPKat is overjoyed to see the return of the Patent Office Media Centre's lead stories section.
* Judgment in Joined Cases T-160/02, T-161/02, T-162/02 Naipes Heraclio Fournier v OHIM - France Cartes (Epée d'un jeu de cartes). This is an action for annulment of a Community trade mark, brought by the proprietor of the graphic mark consisting of a sword, for goods falling within Class 16 (playing cards), against decision R 771/2000-2 of the Second Board of Appeal of 28 February 2002.If that weren't enough, there's more the next day, Thursday, 12 May:
* Judgment T-390/03 CM Capital Markets v OHIM - Caja de Ahorros de Murcia (CM). This is an action brought by the owner of a national figurative mark CAPITAL MARKETS CM for services in Classes 35, 36, 38 and 42 against Decision R-244/2003-1 of the First Board of Appeal of 17 September 2003, annulling the Opposition Division's decision partially refusing registration of the figurative mark "CM" for goods and services in Classes 1 to 42.
* Hearing T-262/04 Bic v OHIM (Forme d'un briquet à pierre). This is an action for annulment of Decision R 468/2003-4 of the Fourth Board of Appeal of 6 April 2004, dismissing the appeal brought against the examiner's refusal to register a three-dimensional trade mark in the shape of a lighter with a flint, for goods in Class 34. This case goes hand-in-hand with Hearing T-263/04 Bic v OHIM (Forme d'un briquet électronique), an application to annul Decision R 469/2003-4 of the Fourth Board of Appeal of 6 April 2004, which dismissed the appeal brought against the examiner's decision to refuse registration of a three-dimensional trade mark in the shape of an electronic lighter, for goods in Class 34.
* Judgment T-31/03 Grupo Sada v OHIM - Sadia (GRUPO SADA). . This is an action by a Community trade mark applicant in respect of the figurative mark GRUPO SADA for certain goods in Classes 29, 31 and 35. He seeks annulment of decision R 567/2001-1 of the First Board of Appeal of 20 November 2002, dismissing his appeal against the Opposition Division's ruling in favour of the proprietor of a national figurative trade mark SADIA for certain goods in Class 29.
* Hearing T-423/04 Bunker & BKR v OHIM - Marine Stock (B.K.R.). This is an action for annulment brought by the successor in title to the applicant to register the figurative mark BKR for products falling within classes 18, 25 and 39 against decision R 458/2002-4 of the Fourth Board of Appeal of 30 June 2004, dismissing the appeal against the Opposition Division's decision to refuse in part the registration of its mark in opposition proceedings brought by the owner of the national word mark BK RODS for goods in class 25.
* Hearing T-274/03 Focus Magazin Verlag v OHIM - France Telecom (Focus One). This action is brought by the proprietor of a national word mark FOCUS in respect of goods and services in Classes 9, 16, 35, 36, 37, 38, 41 and 42 against Decision R 849/2001-4 of the Fourth Board of Appeal to dismiss an appeal against the decision of the Opposition Division to reject an opposition to registration of the Community word mark "Focus One" for goods and services in Classes 9, 35, 38 and 42.The Diary for the following week will however bring cheer to the hearts of judges suffering a bad case of trade mark fatigue -- Europe's finest have been given a whole week off. Merpel asks, is this break in honour of the International Trademark Association's Meeting in San Diego?
* Hearing T-275/03 Focus Magazin Verlag v OHIM - ECI Telecom (Hi-FOCuS). This action, also brought by the proprietor of the national word mark FOCUS for a slightly different selection of goods and services (Classes 3, 5-9, 14-16, 18, 20, 21, 24-26, 28-30, 33, 34, 38, 39, 41 and 42), takes issue with Decision R 913/2001-4 of the Fourth Board of Appeal of 30 April 2003 to dismiss its appeal against the decision of the Opposition Division to reject its opposition to registration of the Community word mark "Hi FOCuS" for goods and services in Classes 9 and 38.
The IPKat brings you an OHIM distinctiveness case, this time concerning an application for the shape of a medicinal tablet. Pharmacia applied to register the shape of a tablet with a diamond-shaped inset as a CTM for pharmaceuticals in Class 5. The examiner refused to register the mark for lack of distinctiveness under Art.7(1)(b) of Regulation 40/94. Pharmacia appealed to the OHIM Board of Appeal.
The IPKat notes that this sort of market-analysis based approach is inherent in the test that the ECJ has set out for the distinctiveness of shapes. He notes that the Board has identified the moment at which distinctiveness must be determined as the moment of purchase – not an uncontroversial proposition.* Both medical professions and patients who were ordinary consumers constituted
the relevant public.* It is not necessary under Art.7(1)(b) for a trade mark to provide precise information concerning the identity of the manufacturer of the goods or provider of the services. Instead, the sign only needs to enable consumers to distinguish the goods or services it designates from the goods or services originating from other companies. Accordingly, registration of the mark could not be refused in the event that there was even a minimum degree of distinctive character. This rule applied equally to 3D marks.
* In this case, the tablet had two distinguishing features – its shape and its ornamentation. The shape was the basic ordinary shape of a medicine tablet. The oval shape and round edges, as well as the lack of hard edges, facilitated swallowing and so the shape could not function as a trade mark. The ornamentation was not an essential functional element of the product and instead was an arbitrary choice made by the manufacturer. In theory therefore it could function as a distinctive sign.
* In order to determine whether the trade mark application possessed the minimum degree of distinctiveness needed for registration, it was necessary to look at the behaviour of the relevant consumer when purchasing pharmaceuticals and the role played by trade marks in this framework. The Board proceeded to conduct an analysis of how relevant consumers use trade marks when purchasing medicines.
*Specialist medical professions would prescribe medicines using their word mark or the name of the active ingredient contained therein. They would not use 3D elements of the medicines to distinguish their origin.* The average consumer might purchase over-the-counter pharmaceuticals either because of a recommendation or through self-diagnosis. In all cases he would either know the name he was looking for or would browse for a preparation meeting his medical requirements. Thus, he was unlikely to take the shape of the mark into account at the moment of purchase.
* The figurative and three-dimensional components of the mark could function perfectly well as a distinguishing element under different circumstances and with respect to different goods and services. For these goods though, they lacked distinctiveness.
* Though consumers might become accustomed to recognising pharmaceuticals administered outside of their original packaging by colour or ornamentation, this was not enough to preclude the grounds or refusal based on Art.7(1)(b). The fact that consumers behaved in that way did not automatically mean that the appearance of the product would be perceived as a trade mark. In any event, claims based on the actual manner of use of the sign would have to be specifically proved by Pharmacia and might be taken into account solely in the context of Art.7(3).
Details of the European Commercial Cases here.* Pharma Intranet Information AG v IMS Health GmbH (Frankfurt Court of Appeal, 2002), on copyright and competition issues arising out of the commercial exploitation of databases;
* Re Copyright in Road Construction Materials Handbooks (Bundesgerichtshof, Germany, 2002), on copyight in boringly functional government publications;
* Tenenbaum v Petraco Distribution Sarl (Cour de Cassation, Paris), a 2003 case which takes a look at graphical reproduction rights in musical works;
Renault: no stranger to the courts when it comes to IP enforcement
* Renault v Franco d'Amato (Cour de Cassation, Paris, 2002), a criminal law decision on fakes and free movement of goods.
Holdthefrontpage reports on a spot of bother in Hull. KC107.3FM is a prospective radio station in Hull, partially owned by the chairman of Hull City Football Club. The Hull Daily Mail is the local newspaper. The Hull Daily Mail accused the radio station of copying some of its stories, sometimes completely, and sometimes taking significant phrases and reported the radio station to Ofcom, the telecommunications watchdog. The chairman retaliated, accusing the Mail of trying to sabotage his attempt to obtain a broadcasting licence and barred the Mail from accessing Hull City football players. The Mail has condemned the chairman’s action and has said:
"This is a matter between KCFM, the Mail and Ofcom. It has nothing to do with the football club or the stadium. It is disturbing that Mr Pearson is using his ownership of the football club and his control of the stadium to attack us."Ofcom’s has refused to consider the Mail’s complain because unauthorised use of contents is not a mater that it considers.
The IPKat has a colleague, Adnan Baranbo, who is doing research leading to a doctorate at the University of Damascus, Syria. Unfortunately he is finding that his university library does not have many treatises in the field of intellectual property. He has asked the IPKat for help.
Two more Court of First Instance decisions were handed down today: they are
* Case T-359/02 Chum Ltd v OHIM, Star TV AG: Chum filed to register as a Community trade mark the word mark STAR TV, for services in Classes 38 and 41. Star TV opposed, citing a likelihood of confusion with its internationally registered figurative mark STAR TV
"49 Contrary to what the applicant seems to be maintaining, it must be acknowledged that, like the trade mark applied for, the earlier mark, inasmuch as it is composed of a verbal element, is also capable of being reproduced phonetically. Thus, in this instance, since the phonetic expression of the earlier mark coincides with the expression of its only verbal element – the words ‘star TV’ –, which corresponds to the trade mark applied for, it must be held that from the point of view of phonetics the two conflicting signs are identical".* Case T-22/04 Reemark Gesellschaft für Markenkooperation mbH v OHIM, Bluenet Ltd: Bluenet was pushing for registration of the word mark WESTLIFE for goods and services in Classes 9, 16, 25 and 41; Reemark opposed, citing its earlier German and international registrations of the word mark WEST for goods and services in the same classes. The Opposition Division upheld the opposition on the ground of likelihood of confusion. The Board of Appeal reversed tha decision, considering that while the goods and services of the respective parties were part identical and part similar, the degree of similarity between the two marks was low. Reemark's appeal to the CFI was successful. That court said:
"27 Here, the sign Westlife is composed of two words joined together, the word ‘west’ and the word ‘life’. Thus, ‘west’ is one of two terms which alone form the mark applied for, Westlife, and the only term forming the earlier mark, West.The IPKat thinks the Board of Appeal got it right and hopes Bluenet appeals further to the ECJ.
28 In relation to conceptual similarities, both trade marks evoke the idea of the West, since they both contain the element ‘west’. As to the second component of the mark applied for, the Board of Appeal rightly stated that the word ‘life’ may be recognised by the relevant public as being the English for the German word ‘Leben’ and, accordingly, as a term with an identifiable meaning rather than a made-up name.
29 Thus, the ‘life’ component, associated with the other term comprising the mark (‘west’), may be taken by the relevant public as a reference to a lifestyle.
Westlife's Community trade mark application goes west ...
30 The addition of the connotation concerning lifestyle is not sufficient to distinguish the two trade marks significantly in conceptual terms. Since both marks will be perceived as evoking western goods or services in the case of West or as pertaining to a western lifestyle in the case of Westlife, they both have similar connotations, which entails a degree of similarity from the conceptual point of view".
* It was seriously arguable, considering the provisions of the Copyright, Designs and Patents Act 1988 and its predecessor in 1956, that Pearson had a contractual relationship with Prentice Hall even if it hadn't given written notice of the assignments at the it served default notices under the licence agreements. This meant that Pearson was entitled, as legal proprietor of the titles, to serve such notices.The IPKat notes how reluctant the English courts currently are to hold that any other jurisdiction is more convenient or appropriate: does anyone keep statistics on this matter? Merpel adds that she's heard that Indian civil litigation is reputed to be very slow -- but is this still the case, now that India has beefed up its IP enforcement procedures in the wake of TRIPs? Do please let us know!
* England was clearly the more appropriate forum since the relevant agreements were governed by English law: Pearson's entitlement to sue under the agreements raised English law issues and involved events and evidence mainly located in England.
* The existence of Indian proceedings involving Prentice Hall (but not Pearson) and the fact that further Indian proceedings were contemplated did not demonstrate that India was clearly a more appropriate forum for the action, nor that England was not the appropriate forum.
On Monday 9 May the IPKat will be attending the talk to be given by Florian Leverve at Queen Mary Intellectual Property Research Institute. Florian will be talking from 12.30pm to 1.30pm on The Case for Appropriating Biomedial Research Pathways. Attendance is free and all are welcome.
Conde Nast's application was a bit of a wind-up, we think
Pumfrey J dismissed this application, holding as follows:
* In principle the court would not exclude any evidence that was not wholly irrelevant unless it was satisfied that the problems caused by allowing it would be disproportionate to the advantages of allowing it. However, this proposed evidence was expressed with vagueness coupled with hyperbole. This being so, there were serious concerns about the manner in which it was expressed since it lacked any experimental basis for the public’s expectation, making it difficult to deal with any factual assessment which had to be undertaken.
* there were already survey results in evidence purporting to deal with what the public thought. The trial judge would also have the benefit of a large number of witnesses from the public. Consequently, the proposed evidence would be of little effect. What's more, it would pose an enormous challenge for Peers Hardy to respond to it in the short time before trial.
The IPKat thinks this application was a bit of a try-on, with more nuisance value than anything else. Merpel wonders who paid the costs of the hearing and hopes it wasn't Peers Hardy.
This edition does not merely update its predecessor but makes some structural changes too. Thus you will find"The recent consolidation of regulators in the UK makes this a very timely publication, providing practitioners with an extremely thorough survey of the law and regulatory structures related to telecommunications. Written by many of the leading experts and practitioners in the field, it is a reliable source of reference for practitioners and academics alike. Covering UK, EU, US and other international systems, it offers a comparative and rounded overview of the global telecommunications industry and its regulation. This second edition is fully updated, and contains new chapters on 'Sources of Law', 'Technology, Terminology and Market Structure', 'Intellectual Property Issues', and 'Content Regulation', including broadcasting, internet and premium rate services. The coverage of emerging markets is much expanded with an extensive new chapter on regulatory frameworks for developing countries.
* a chapter on Technology, Terminology and Market Structure;£75 for a paperback textbook may sound expensive, but for over 700 pages on a niche topic such as Telecommunications Law the price looks reasonable enough.
* a new chapter on Telecommunications, Standards and IP Issues;
* the former chapter on 'Regulatory Convergence: The Impact of Broadcasting and Other Laws' has been replaced by 'Content Regulation'.
IPKat masters Jeremy and Ilanah will be at this year’s INTA Annual Meeting in San Diego.
A bit of a belated story from the IPKat. CE Pro reports that the US Supreme Court has turned down an appeal from Chamberlain Group, the makers of garage door openers. Chamberlain Group brought an action against Skylink, the makers of universal garage door transmitters, claiming that Skylink had infringed its rights under the DMCA which protected the copyrighted software that operated its transmitter. Chamberlain’s claim was dismissed by both the Illinois District Court and the Federal Circuit and by refusing to hear an appeal, the Supreme Court has made it clear that it has nothing to add to the lower courts’ decisions.
The IPKat thinks this is quite right. Software to operate machinery isn’t the sort of copyright material that the DMCA is prepared to protect.
More doors of note here and here
* Maciej Barczewski (University of Gdansk) writes on "International Frameworks for Legal Protection of Digital Rights Management Systems" -- a nice twist, since people are so preoccupied with what it is that DRM systems protect that they don't focus on protection of the DRM systems themselves;Subscription details of the EIPR are available here.
* Belinda Isaac and Rajiv Joshi (Morgan Cole, Oxford) review current case law on the tests employed in establishing whether trade marks are "identical" to one another;
* Also on the subject of trade marks, IPKat co-owner Ilanah Simon gives a full analytical account of the fascinating decision of Electrocoin v Coinworld on infringement and validity on a most unusual set of facts;
* Angus McCulloch (University of Manchester) reviews recent cases that protect the right of computer game manufacturers to impose their pestilential "region locks" on computer games.
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