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.

Saturday, 31 December 2005

FALLING INTO THE PUBLIC DOMAIN ...


In countries which have a "life plus 70 year" copyright term for authors' works, New Year's Day each year sees a batch of authors' works falling out of copyright protection. Among those who died in 1935, and whose works are no longer protected in life + 70 jurisdictions as from tomorrow morning are the following:

* French anti-militarist and revolutionary writer Henri Barbusse (right);

* Judge Oliver Wendell Holmes, Junior, distinguished American jurist sometimes known as The Great Dissenter, pictured (left) as a young man;

* Lawrence of Arabia (a.k.a. T. E. Lawrence, right, real name Thomas Edward Lawrence), the Englishman who helped the Arabs fight the Ottoman empire for their independence and who wrote The Seven Pillars of Wisdom;

* Alban Berg, the depressive Austrian composer (painted, left by Schonberg), who wrote a very moving Violin Concerto;

* Paul Dukas, the French composer whose Sorcerer's Apprentice was immortalised by Walt Disney in the original version of Fantasia (the apprentice being Mickey Mouse's best-known film role);

* Auguste Escoffier, left, celebrated French chef and author, known as the King of Chefs and the Chef of Kings.

The IPKat says, feel free to post the names of your favourite died-in-1935 authors, artists, composers and dramatists in the Comments slot below. Merpel says, what about the "life-plus-50 years" countries? Let's hear it for people who diied in 1955 too!

Friday, 30 December 2005

GOOGLE IN PATENT INFRINGEMENT CASE


The Times reports that Google is being sued for patent infringement over its Google Talk service. Rates Technology Inc has brought a case in New York, claiming that the technology used by Google’s Voice over Internet Protocol (VoIP) service infringes patents that RTI was awarded in 1991 and 1995. Even if the claim is successful though, it may not prove a major setback to Google since it now owns a 5% share in AOL which may enable it to use AOL’s internet speech technology.

The IPKat notes that Google has been in the wars when it comes to IP, with the Google Print controversy and the UK battle over the Gmail trade mark and now this. Perhaps this is inevitable though, considering the wide range of information-based services Google provides.

MORE KITTY LITTER; OUT IN THE COLD?


More kitty litter

The IPKat has found another gem of IP rights confusion in this piece from the Mumbai Mirror, India:

"The ancient Indian rural art of Madhubani painting is next in the race to be patented after the Pochampally sari design. National Bank for Agriculture and Rural Development (Nabard), a facilitator for rural artisans, is pushing the case for Madhubani.

The style Pochampally, tie-and-dye silk woven saris made at the Pochampally village near Hyderabad, got the Geographical Indication (GI) status early this year. Scotch and Champagne are the other commonly known items that have the GI status.

“Getting Pochampally design patented by the Controller General of Patents, Designs and Trademarks under the Geographical Indications of Goods (Registration and Protection) Act, 1999, was a first of its kind achievement for grassroots level artisans. Madhubani paintings are acclaimed worldwide and has a big international market. It is the need of the hour to get it patented,” said TS Raji Gain, Deputy General Manager (Women and Environmental Cell), Nabard.
Getting a design patented as a GI is a real triple whammy, says the IPKat. But how come there was no mention of copyright ...?


Out in the cold?

EconomicTimes has reported that Intel may be dropping its long-standing "Intel Inside" tag line and logo, which has been a large part of Intel's branding. Some sources in Intel say that a change is in the offing, and internal documents are learnt to have already started using the new logo. The new launch is expected in the first week of January. Of discussion among Apple users is whether Apple would participate in the co-branding push that has been adopted by PC manufacturers. This participation is reportedly rewarded with marketing dollars by Intel.

The IPKat wonders whether Intel's move has been forced upon it by the increased use by third parties of the simple logo, with its highly descriptive text, for parody purposes, which the illustrations on this blog suggest may be something of an annoyance or distraction.

No, says Merpel, it's because people just assume that their hardware has Intel Inside unless the contrary is proven, so a new slogan is needed.

Intel inside here
Intel in court here and here

JAPAN TO INCREASE MAXIMUM IP DAMAGES


TCM reports that the Japanese Patent Office is increasing the maximum penalty for infringement of intellectual property rights by businesses from 150 million yen to 300 million yen (just under £1.5 million). Meanwhile, the maximum penalty for private defendants will be increased to a maximum prison terms of five years or fines of up to 5 million yen. The changes will be put before the Japanese Parliament next year and are expected to come into force during 2007.

The IPKat welcomes the changes to the extent that they are used to provide awards of damages that are truly compensatory.

Thursday, 29 December 2005

SIX MONTH DELAY, BUT NOKIA MUST PAY


Nokia hit by expensive arbitration

The IPKat has been reading excitedly this little item in The Register (Biting the hand that feeds IT") on the confirmation by a US federal judge yesterday that Nokia must pay $232-$252m in disputed patent royalties to InterDigital, having unsuccessfully contested a decision made in June by the International Court of Arbitration in respect of GSM handsets and network equipment sold between 2002 and 2006 (assuming there will be a 2006 ...).

The IPKat notes that this was a case in which the parties were obliged to arbitrate under the terms of InterDigital's licence of its technology to Nokia. The licensor will generally opt for arbitration as a cheaper and more discreet alternative to litigation, particularly where other licensees might otherwise be eagerly watching for the terms of a court judgment that would have a direct impact on the enforceability, or issues of liability, under their own, similar licences. Here Nokia, having contested the terms of the award, only seems to have delayed the inevitable payment by six months or so. Merpel adds, I wish I could delay paying my phone bills for six months ...

Great delays here and here
The great delayer here

IS THIS REALLY THE TOP TEN?


Top ten IP sources?

The IPKat stumbled across an outfit called Top Ten Sources (whose methodology is explained here), which lists what it calls the Top Ten IP sources. Even allowing for the fact that Top Ten assumes that IP begins and ends in the United States, it has a few surprising choices in its list, in addition to some of the IPKat's favourites (among which are the excellent Patently-O and Patent Baristas).

The Top Ten list includes Patently Silly (see logo, left) which is, as its name suggests, patently silly and quite good fun - but hardly an information source for anything except silly patents. There is however no room for such highly useful US sources as

* the highly informative and indeed provocative Trademark Blog by Marty Schwimmer;

* Legislating IP, which has some useful information and comment on US IP litigation in progress;

* the perhaps underrated Pierce Law IP blog, which keeps its entries short and sweet;

* Lessig Blog, on which vigorous debate as to controversial copyright issues can be found;

* Berkeley's bIPlog, which gives a West Coast/academic perspective to high tech IP developments;

* John L. Welch's TTABlog, which provides unbeatable and accessible coverage of TTAB decisions.

Outside of the US there exist some excellent websources (even apart from the IPKat). These include the software-savvy TechnoLlama (left), Markenbusiness, not to mention Domain Name/Nom de Domain ! from Cedric Manara (right) and the umbrella service of MultiReg.com. The Kat could mention more, but Merpel hates lists and tells him to quit now that he has made his point.

The IPKat notes Top Ten's claim that its staff is

"... comprised primarily of editors, researchers, and very friendly technologists. The Top 10 editorial team employs an iterative methodology with a constant core -- combining technical metrics with nuanced editorial judgment -- to draw together and contextualize the freshest, most relevant content on the web. Editors and researchers have developed subject matter expertise and track closely the communities on the web that are established, and constantly re-established, around ideas and topics".
If that were indeed true, and assuming that Top Ten's anonymous staff actually exists, the list of sites selected is surprising indeed.

Wednesday, 28 December 2005

GOOGLE SUED OVER BLOGGER BLOG


The IPKat has learnt from AXcessNews that Google is reportedly being sued for trade mark infringement by Jews for Jesus. A blogger named Whistle Blower has established a blog located at the domain name http://jewsforjesus.blogspot.com/. The blog is powered by Blogger software, which is provided by Google, which offers bloggers the opportunity to choose their own domain names in the form http://xxx.blogspot.com/ – hence the action against Google. The website in question is critical of Jews for Jesus’ activities.

The IPKat is rather concerned about this. He’s intimately acquainted with the workings of Blogger since that’s what powers his blog. The beauty of the software is that it allows bloggers to do things for themselves. Google neither exerts control over the content of sites, nor the urls that they operate under. If they had to in order to escape legal liability, it’s unlikely that Blogger would remain a free service, limiting a valuable channel of free expression. Whistle Blower could have chosen a url that made clear that his blog was critical of Jews for Jesus, rather than being connected with it, but it’s hard to see how Blogger could have enforced such a requirement.

Tuesday, 27 December 2005

MORE ON FCUK


The IPKat promised to bring you further information about the UK Trade Mark Registry’s ruling in the FCUK revocation decision and lo and behold, here it is!

French Connection holds the registered trade mark FCUK in relation to goods in various classes. Mr Dennis Woodman applied for the mark to be invalidated for goods in Class 14 under s.47 of the UK Trade Marks Act 1994 on the ground that it was an immoral mark that was barred from registration under s.3(1)(f) of the TMA. He argued that that the FCUK mark was intended to be mistaken for the expletive fuck. French Connection argued that its mark was not of a sort that could be barred from registration. Although a degree of word-play was possible, the origin of the mark was as an acronym for French Connection United Kingdom, and there had been a number of other acronyms that had been used internally (such as FCUS, standing for French Connection United States) to refer to the various branches of the company. Numerous traders had associated their products or events with the FCUK mark, or had sold FCUK goods. There had only been a few instances of complaints to organisations such as the Advertising Standards Agency, and most of these had focused on the use of the FCUK mark in particular contexts, rather than to the mark itself.

As the Kat has already informed his readers, the application for revocation was rejected.

*Since Woodman’s case was that the public would misconstrue the FCUK mark as the word fuck, the initial question to be answered was whether fuck would be barred from registration as a trade mark on morality grounds. If the word fuck would be registrable, then French Connection would have no case to answer.

Was the word “fuck” registrable as a trade mark?

*The word fuck would not be registrable as a trade mark. The fact that it was commonly used in everyday life did not make it acceptable. It was more than merely smutty and would cause outrage among a significant section of the public. [IPKat NOTE: Note the similarity in the reasoning to the US KATRINA BLOWS, BUCK SUCKS decision, which the IPKat mentioned in his initial post on the FCUK decision]

Would the FCUK mark be mistaken for the word fuck?

*In judging whether the word FCUK would be construed as the word fuck, the hearing officer examined the visual, aural and conceptual impact of the mark on consumers. [IPKat NOTE: so far as he knows, it’s unprecedented for criteria for comparing marks in infringement/opposition cases to be deployed in immoral marks cases]
*It was not disputed that usually FCUK would be pronounced as its individual letters, rather than as a word, so aurally they would be quite different.
*The conceptual meaning of the mark depended on whether the mark would be seen as fuck, either spelled correctly or mis-spelt. While the word fuck would cause offence to a significant section of the public, the offence was not caused by FCUK itself. Rather the possibility of offence arose through word play, mistake, or misconstruing of the letters, the mark though would enable the mark to be seen as the word.
*It would not be right to see the mark as objectionable because it was capable of being seen as something that was not. There was no evidence that establishes that the trade mark FCUK solus was seen as the expletive amongst an identifiable section of the public.

At what point should the offensiveness of the mark be judged?

*There was nothing in s.47 that allowed for the invalidation of a mark that had become objectionable on absolute grounds through the use that had been made of it post-application. Thus, the fact that French Connection had educated the public to view the mark as the objectionable word was not relevant to the hearing officer’s decision. However, the context in which FCUK had been used may have contaminated the term FCUK, causing the term itself to become offensive. This could be relevant to the hearing officer’s decision. [IPKat NOTE: This seems right – if you can educate consumers to see a descriptive word as a trade mark, you should be able to educate consumers to view neutral words as having taken on an offensive meaning.]
*In judging whether this had occurred, the reaction to the mark on the market proved a good barometer. Respectable traders had traded in FCUK goods with hardly any adverse response from members of the public. Also, there had been few complaints from the general public about the FCUK mark, and those that had been made tended to focus on the use of FCUK in a particular context, rather than on the term itself.

The IPKat notes a number of examples of novel reasoning in the hearing officer’s deicision, particularly with regard to comparing plays on immoral words with the immoral words themselves, the point at which the immorality of the mark must be judged and the comments on educating consumers about the meaning of words. Merpel wonders why the revocation action was limited to jewellery and watches. If it's offensive for them, surely it's offensive for all goods?

PRIVATE EYE, PUBLIC ICON; HANDS OFF OUR TREE, SAY INDIANS


Private Eye, public icon

Under the caption "Bush iPod confusion" satirical British magazine Private Eye runs the photograph and speech-balloon on the left. If there's any doubt that trade marks are cultural icons that belong to the general public as much as they ever do to their registered owners, this picture should remove it.


Hands off our neem tree, say Indians

The IPKat found this item on BusinessWeek Online. It begins:

"For thousands of years Indian villagers have used an extract from seeds of the neem tree as an insecticide. So when a US company patented a process for producing the substance in 1994, India reacted with outrage. After spending millions of dollars in legal fees to successfully overturn the patent, India's government now is creating a 30-million-page database of traditional knowledge to fend off entrepreneurs trying to patent the country's ancient lore".
The database, called the Traditional Knowledge Data Library, will make information available to patent offices around the world to ensure that traditional remedies are not presented as new discoveries. "If societies have been using it for centuries why should it be patented?" said Shiv Basant, a senior official at the Health Ministry's Department of Ayurveda, Yoga, Unani, Siddha and Homeopathy, India's traditional health and medical disciplines.


Trees occupy a major role in modern research and development

The IPKat thinks the basic idea is fine. Nothing that has been known and used for thousands of years should be misappropriated by a single patent applicant. But the patent system must be allowed to do what it does best, to provide incentives and investment support for people who discover things that haven't been around before, like new ways of making things. Merpel adds, why not make the Traditional Knowledge Data Library available to everyone and not just patent offices? It might save inventors a lot of time of effort if they can more easily search the prior art and see for themselves what they can't patent?

Why neem trees are good for you
How to tell good trees from bad trees: St Matthew explains
Bad tree here

NEW ISSUE OF THE EIPR


The IPKat has come into possession of a copy of January 2006’s issue of the European Intellectual Property Review.

This month’s issue is rather patenty in flavour. The goodies on offer are:

  • Pat Treacy and Anna Wray (Bristows) on the prospects for EU wide criminal sanctions in IP cases;
  • Fiona Bor (Carpmaels & Ransford) on the exceptions given to patent infringement applied to biotechnology research tools under s.60(5) of the Patents Act 1977;
  • Paul Ganley (Baker & McKenzie) on the Supreme Court's Grokster decison and the future of P2P;
  • Amanda Warren-Jones (University of Liverpool) on the use of empirical evidence in judging morality in biotechnology patent cases;
  • Iris H-Y Chen (University of Leicester) and Will W Chen (LSE) on IP protection of printed circuit boards;
  • Alisa Carter and Simon Aryton (both Bristows) on patent entitlement and Markem v Zipher;
  • David Thomas (BUAV and Bindman & Partners) and Georgina A Richards (University of Southampton) on the EPO Technical Board of Appeal's decision in the Oncomouse case;
  • Stephen Kon and Thomas Heide (both SJ Berwin) on the Court of Appeal's decision in the British Horseracing Board v William Hill database case;
  • The usual collection of notes on national cases and book review.

This IPKat commends this issue as a perfect Bank Holiday Tuesday read.

Monday, 26 December 2005

COPYRIGHT WORLD; NEW BLOG ON THE BLOCK


Copyright World

The December 2005/January 2006 issue of Informa's Copyright World has now been published. It leads with a piece by Withers' solicitors Hugh Devlin and Romain Dourlen on the subtle difference between fashion-inspired clothes design and direct copying. The IPKat has never understood the fashion market. If no-one copies you, it means you're unfashionable; if everyone copies you, you sue - but it's the fact that others copy you that makes you the fashion trendsetter. Merpel adds: is there a prize for most annoying law firm website? If so, can I nominate Withers?

There's also a report on the UK's ratification of the WIPO Performances and Phonograms Treaty by Manches' Alasdair Taylor and a useful article by Lovells' Wolfgang Büchner and Thomas Schafft on some recent German decisions on internet-based personal video recorders which seem to make rather heavy weather of some fairly unexceptional factual situations.


Welcome, Human...

There's a new blog on the block: Justin Patten's Human Law. The blog is named after the law firm that Justin (right) established in 2002. His particular interest is the interplay between law, technology and people and his practice takes in both trade marks and domain names.

Here's what Justin has to say on the subject of copyright infringement when best-selling journalist/author Thomas Friedman attacks piracy but appears to make an unlicensed use of this painting (left) by Ed Miracle on the cover of his book The World is Flat. Incidentally, Ed has instructed Justin in this matter.

The IPKat welcomes all new IP blogs and wishes Justin the best of luck.

Sunday, 25 December 2005

APOLOGY; JCL&E LATEST ISSUE


Sorry if you got deluged!

Many of you who receive our email notifications will have received 50 or so notifications of the IPKat's blog last night. This appears to have been the result of a malfunction of Google's normally reliable notification software. If it's any consolation, the IPKat and Merpel were deluged with a multiplicity of unwanted emails too, including a large number of Out of Office messages that normally get filtered out of the email circular system.

Please be patient with the IPKat. He's doing his best and, if anything goes wrong, he suffers just like you!

To receive email notifications, please email the IPKat here or scroll down to the foot of the page and fill your email address in the little Google Groups box.


Another JCL&E emerges

It may be late December, but the golden leaves and balmy autumnal evenings in Oxford are conjured up by the late appearance of the September 2005 issue of Oxford University Press's Journal of Competition Law & Economics.

The IPKat is a firm believer that intellectual property law only makes sense against a background of competition law and that it is primarily an economic right, not a moral one. He is saddened, however, that most economists either steer clear of IP law or seem to misunderstand its hugely subtle operation. That's why he was so pleased to see the critical analysis by Ariel Katz (right, Assistant Professor, Faculty of Law, University of Toronto) of the collective administration of copyright. In his abstract Professor Katz writes:

In most countries the right to publicly perform music is not administered individually by the copyright holders but rather collectively by performing rights organizations (PROs). The common explanation behind the proliferation of collective administration is that some aspects of copyright administrations are natural monopolies. It is often argued that individual administration is impracticable or at least non-economical. Collective administration is therefore promoted as the most efficient method for licensing, monitoring and enforcing those rights. In addition, because the market is a natural monopoly, regulation, rather than an attempt to foster competition, is thought to be the optimal regulatory response. This is the first in a series of two articles that critically analyse this natural monopoly argument. In this article I argue that the case for PROs is not as straightforward as it is assumed to be. I show that many of the underlying cost efficiencies that are attributed to PROs are usually simply assumed and, in many cases, could be equally achieved under less restrictive arrangements.
Biographical details of Ariel Katz here
Full list of contents of the current issue of JCL&E here

HAPPY HOLIDAYS



The IPKat wishes all his readers the best compliments of whatever season they’re celebrating. Merry Christmas, Happy Chanukah or just a plain old Happy New Year.

Bring on the turkey here, here and here
Frying tonight here, here and here
Hedging your bets here

Saturday, 24 December 2005

BoAs GET NEW HEAD; JBL LATEST


Congratulations

The IPKat congratulates Paul Maier (right) on his appointment as President of the Boards of Appeal of the Office for Harmonisation in the Internal Market for another five years. Paul, a native of Strasbourg (where he was born in 1958) has served as Head of OHIM's Designs Division and is known to be a nice guy.


Journal of Business Law

The first issue of Sweet & Maxwell's Journal of Business Law for 2006 has now been published. The IPKat notes an interesting article by Hazel Fleming (Lecturer in Law, University of Stirling) entitled 'An End to Brandsharing?', in which she analyses current European legislation to suppress the practice of using tobacco brands on non-tobacco products (somewhat inelegantly termed brandsharing, or brand-stretching). Hazel warns that the tobacco companies may yet find ways around even the stiffest restrictions, if the experience of France is anything to go by.

Friday, 23 December 2005

AMERICANS ARE PEOPLE TOO; FRENCH SHEEP GO FOR PGI


Lipitor in Spain

The IPKat notes that the battle between Indian pharma manufacturer Ranbaxy and other generic producers on the one side, and original drug developer Pfizer on the other, over the heart and soul of Lipitor (see IPKat blog here, here and here) has spread to Spain, where the Court of First Instance in Madrid has ruled that the claims of Pfizer's patent covering atorvastatin are valid and enforceable. This time the challenge to the patent was brought by Ratiopharm Espana SA. Lipitor is sold in Spain under the brand names Zarator and Cardyl.

The IPKat thinks this is significant. There was a time when patent validity decisions outside three or four key jurisdictions were hardly ever picked up on by the world's media. But now Spain is in the spotlight. With laws on patent validity that are compliant with the European Patent Convention, and with an increasingly vibrant IP profession, Spain can legitimately say that its rulings - which are not binding on those of courts in other countries - are at least of some persuasive value.

Merpel adds, the linked news item says that Lipitor is "widely used by Americans and people throughout the world". What's the difference between Americans and people?

Click here to visit Litigation Notes and see Calvert Crary's take on the most recent US Lipitor decision.
What is cholesterol? Click here for more information .


Pulling the wool ...

Agneau de Sisteron is the subject of a recent application for Protected Geographical Indication status. According to the application,

"Sheepfarming in France has its historic birthplace in the south-east of the country. For over 6 000 years sheep have been grazing on its pastures. Rooted in this ancient tradition, the name ‘Agneau de Sisteron’ first appeared in the 1920s and 1930s, on the initiative of Sisteron's wholesale butchers, who traditionally obtained their supplies in the defined PGI area. The regional and national renown of the name has gone on growing and literally soared in the 1950s and 1960s. Sisteron is the focus of this renown but the lamb is born, reared and slaughtered across the whole of the PGI geographical area. The region can be said therefore to have acquired the historical local expertise.

A recent public awareness survey conducted by an independent consultancy, together with numerous accounts (newspaper articles, etc.) confirm that Sisteron lamb is very widely known among consumers (1 regional consumer in 8 spontaneously mentions Sisteron as the place from which lamb that has been purchased comes)".
The IPKat is a little surprised at this remarkable incidence of spontaneous mentions of Sisteron as being the place where lamb is purchased. A Google search of 'Sisteron' yielded 319,000 hits; 'Sisteron' plus 'agneau' gives just 889 (the less attractive 'mouton' gives 636 hits). However, 'Sisteron' plus 'vacances' (holidays, in French) gives 53,300 hits; add 'vin' and you get 14,000 hits. Even 'Sisteron' plus 'sex' notches up 1,560 hits. Not much evidence of spontaneous association with sheepmeat, then ... Merpel agrees. Consumer surveys are great, but is this one being used for pulling the wool over our eyes?

HYPERION PAYS £££s


The IPKat is grateful to Graeme Fearon of Thring Townsend for pointing him in the direction of this story in the Guardian. Music company Hyperion has settled the costs following its dispute over copyright with Lionel Sawkins. Hyperion made use in one of its recordings of a edition of Lalonde’s Music for the Sun King which Sawkins had edited into a form that could be played by modern performers. Sawkins sued Hyperion for copyright infringement. Both the High Court and the Court of Appeal found in Sawkins' favour, and came to the conclusion that Sawkins’ editing of what was a pre-existing work amounted to an original musical work.

Now it appears that Hyperion will have to pay costs in the region of £950,000 (pretty much equivalent to a year’s “music-making” budget). As well as its own costs and damages, this includes a hefty bill from Sawkins’ solicitors, Carter-Ruck. Sawkins’ costs were governed by an “uplift” agreement, by which, if he won, he would have to pay additional costs in order to subsidise the “no-win, no-fee” arrangement of other clients of the firm.

Various musical luminaries have condemned the costs bill, arguing that the future of a small music company should not rest on a misunderstanding on the company’s part about the scope of copyright law.

The IPKat says that ignorance of the law is no defence. However, he does think it quite harsh that a losing party should be made to subsidise the costs of cases lost by other clients of the winner’s solicitors, with whom the losing part has absolutely no connection.

DEAD AUTHOR SUES; BAD FAITH IN TM LAW


The Old Man and the Suit

The IPKat received this piece from his friend Miri Frankel. It appears that the estate of the late Nobel Prize-winning novelist Ernest Hemingway has commenced legal proceedings against bar owner Jeff Schleuning, who named his Greensboro (North Carolina, USA) premises Hemingway Downtown. Schleuning says he named the six-month-old business after an English bulldog he had as a boy. Says a lawyer for the estate:

"Regardless of who the establishment was named after, it really would not matter. The question is whether there is consumer confusion over the source of the name".
Schleuning responds:
"We're actually the kind of bar he would despise coming to. From what I know of him, he liked little dive-type bars".
The bar in dispute, located near a cluster of dance clubs and bars, targets an older, upper-class clientele who pay a membership fee to sip specialty martinis and smoke cigars.

Hemingway's famous titles include The Old Man and the Sea and A Farewell to Arms

The IPKat wonders whether drinkers would associate the name Hemingway exclusively with Ernest and not with Mariel and Margaux, who both achieved a degree of celebrity in their own right.


Bad faith - in Dutch

The IPKat congratulates Alexander Tsoutsanis on the successful defence of his doctoral thesis, 'Bad Faith Trade Mark Applications' (in Dutch, 'Het merkdepot te kwader trouw') earlier this month. The thesis reviews the law relating to bad faith in trade mark filing in of all the EU member states.

Dr Tsoutsanis, currently a member of the Department of Company Law & Intellectual Property Law at the incredibly beautiful and historical University of Leiden, joins prestigious Dutch IP boutique Klos Morel Vos & Schaap in January.

A Dutch edition of the thesis has been speedily published by Kluwer, containing a 12-page English summary. More to the point, this thesis is likely to be published in English early in 2007. If you'd like to be kept informed when the English version is ready, can you email Alexander and let him know.

FRANCE TO MAKE DOWNLOADING LEGAL?


The IPKat is grateful to Florian Leverve of QMIPRI for tipping him off about this story. The International Herald Tribune reports that the French National Assembly sat late into last night discussing whether to legalise downloading for private use.

Oooh look - it's a French bill (left)

The Socialist Party attached amendments to the copyright bill that is currently going through the French Parliament that would allow unlimited downloads for private use by individuals once they have paid a one-off fee.

Members of the Socialist Party have said:

We are trying to bring the law up to date with reality..It is wrong to describe
the eight million French people who have downloaded music from the Internet as
delinquents
and

We are only leading in a direction that is inevitable for the law everywhere…You
will see other European nations adopting such laws in the future because they
just make sense.
Some have condemned the amendments though, pointing out that the moves would severely limit the revenue that artists could obtain from P2P activities. The French film industry is expected to suffer particularly, since it relies on pay-per-view television stations for much of its funding. If the films were legally downloadable from the internet, there would be no incentive to pay to view them.

The IPKat reckons that this proposal makes little sense conceptually unless there are moves to legalise uploading as well (not that he’s recommending that this should be done). If downloading is legalised but uploading isn’t, then France would be recognising a legitimate market for films to download, but then saying that it would be illegal for anyone to meet the needs of that market by uploading the films ready for downloading.

Thursday, 22 December 2005

TRADEMARK WORLD; PORKIES GO TO COURT


Trademark World

The IPKat has just been thumbing through the December 2005/January 2006 issue of Informa's Trademark World . What has he found?

This issue is well supported by contributions from Rouse/Willoughby. Tony Willoughby himself writes on the need for brand owners to participate in consultations with the UK government over possible relaxations of Part 9 of the Enterprise Act 2002. Part 9 limits the circumstances in which public authorities such as Customs and Trading Standards offices can disclose information for civil litigants (eg IP owners) if it has been gathered for the purpose of criminal proceedings. Then Ranjan Narula (left) and Rachna Bakhru (right) of Rouse International's Dubai office review some of the sticky issues relating to likelihood of confusion between pharma trade marks.

One other feature that the IPKat particularly liked was a review by Wim Alberts (John & Kernick, Jo'berg) on sabotage marketing, a highly dubious cousin of the more legitimate, fun-loving ambush marketing, and on the means by which the law can stamp on it.


This little PGI went to market, this little PGI went to court ...

Yesterday was a big day for Melton Mowbray pies, following Northern Foods plc v Department for the Environment, Food and Rural Affairs [2005] EWHC 2971 (Admin), a Queen’s Bench Division (Administrative Court) decision of Mr Justice Crane.

The Department for the Environment, Food and Rural Affairs (DEFRA) forwarded to the European Commission an application by the to register the words ‘Melton Mowbray Pork Pie’ as a protected geographical indication (PGI) under Council Regulation 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs. Northern Foods, objecting to the narrow definition of the geographical area in the application's specification, sought judicial review of the decision to forward the application to the Commission.

Crane J dismissed the application for judicial review. In his view the words ‘originating’, ‘originate’ and ‘origin’ in the Regulation referred to where Melton Mowbray pork pies came from in the past, not to where they currently came from. Essentially, a foodstuff had to originate in a named geographical area and it also had to have a link with the geographical origin. If they were different concepts, one might then be geographically wider than the other.

The IPKat is most impressed at the ability of PGI and PDO law to turn back the clock and draw back into controlled usage a term such as "Melton Mowbray" that was very widely used with no apparent distress to the great pie-eating public. The same is happening with Feta. But who is speaking up for the consumers' interests?

This little piggy went to market ... here
Old Elizabethan Pig Pie here

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