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Friday, 24 March 2006


Apple denounces perfidious French

The IPKat learns that Computer-and-iPod company Apple has denounced France as a sponsor of piracy after the country's parliament backed a bill that, if enacted, will force the company to open its DRM technology to other hardware vendors and online music stores. Claiming that interoperable music "cannot be adequately protected", an Apple spokeswoman blasted the move as "state-sponsored piracy", adding:

"If this happens, legal music sales will plummet just when legitimate alternatives to piracy are winning over customers."
If the bill becomes law, Apple's most likely course would be to shut down the French incarnation of its iTunes Music Store, the leading digital music vendor in France, according to its closest rival, VirginMega, the Virgin Group's French online music joint-venture with media company Lagardère. Apple's market leadership was reputedly confirmed this week by a VirginMega spokesman cited by

VirginMega sued Apple in August 2004 to force it to open up its FairPlay DRM technology, but failed to persuade the French court that Apple was behaving in an anticompetitive fashion - even though the court considered that Apple's decision to keep FairPlay to itself put consumers at a "disadvantage".

Left: this is how the French prefer their Apples

The IPKat will be following this with interest, inviting his French readers to give their own opinions (which are likely to be better informed than his own). Merpel adds, doesn't the Software Directive rather suggest that EU copyright/competition policy favours interoperability? Add that to the ECJ's ruling in the Magill case and you've got a tough environment for market leaders who want to retain their market control.

Sounds similar - but needn't confuse

Yesterday the European Court of Justice gave its ruling in Case C-206/04 P Mulhens BmbH & Co KG v OHIM, Zirh International Corp (Case C-206/04P, profiled here).

Zirh applied to register the word ZIRH as a Community trade mark (CTM) for class 3 toiletries. Mülhens opposed, citing an earlier figurative CTM containing the word SIR plus a heraldic device, for goods in the same class and claiming that there was a likelihood of confusion under Article 8(1)(b) of Council Regulation (40/94. The Opposition Division, Board of Appeal and Court of First Instance (CFI) all disagreed, so Mülhens appealed to the European Court of Justice - which also dismissed Mülhens' opposition.

According to the ECJ,

* there was not necessarily any likelihood of confusion each time a mere phonetic similarity between two signs was established. This was because the existence of a likelihood of confusion on the part of the public had to be appreciated globally: that meant that conceptual and visual differences between two signs might counteract aural similarities provided that at least one of the signs had, from the point of view of the public, a clear and specific meaning that the public was capable of grasping immediately.

* Although phonetic similarity might be sufficient of itself, the existence of a likelihood of confusion had to be established as part of a global assessment in relation to conceptual, visual and aural similarities.

Right: aural similarity isn't everything

* The CFI had stated the law correctly and had not misapplied it to the facts.

The IPKat notes, sadly, that the ECJ passed no comment on the decision of a German courts that the same two marks were likely to be confused, holding the later mark to infringe the earlier one.

IPKat Translation Watch: a Pair of Storcks

IPKat's message to the Artwork Department: "You've got the wrong pair of Storks ..."

Also yesterday the Advocate General's Opinion was published in two related cases, Case C-24/05 P Storck v OHIM and Case C-25/05 P Storck v OHIM. The IPKat has an idea what at least one of the two cases is about (see earlier blog here), but the Opinion is not in English. Can any kind reader put this Kat out of his misery and tell him what's going on?


Ray said...

You might remember Apple's similar reaction when RealNetworks figured out how to sell songs to iPod owners in the summer of 2004:

“We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod, and we are investigating the implications of their actions under the DMCA [Digital Millennium Copyright Act] and other laws.”

Apple threatened to sue Real but in the end updated their drm so that it wouldn't talk to the Real software any more; and there have been various rounds of this technical tit-for-tat every since.

James Boyle had a great commentary on the dispute in the FT at the time:

If a carpenter said another "adopted the tactics and ethics of a hacker" to break into into his table design in order to make compatible chairs, it would sound ridiculous. But that's about the standard of the debate on drm technologies.

The French government are now urging the rest of the EU to adopt similar interoperability measures.

Margaret said...

I didn't have time to help out by translating here (actually, I couldn't find the German texts from your references, for some reason), but I see the German trade mark blog Markenblog has an entry:

That I can summarize!

Werther's Original not a 3D mark?
The Advocate General Dámaso Ruiz-Jarabo Colomer in the case C 24/05 P etc. recommended that the grounds for appeal and the appeal as a whole should be rejected.


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