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.

Monday, 24 April 2006

ALL THE FUN OF THE FAIR; MORE ON MIS-IMPLEMENTATION OF THE ENFORCEMENT DIRECTIVE


Swings and roundabouts

The IPKat learns from Xinhuanet that the Hong Kong Intellectual Property Department and the Hong Kong Scout Association (HKSA) held a "Respect for Intellectual Property Rights Fun Fair" in Hong Kong yesterday. This event was held at Kowloon Park Piazza to promote respect of intellectual property rights and to mark the World Intellectual Property Day on April 26. Over 60 scout members have participated in various kinds of IP seminars, workshops and visits since the "Scout Program on Respect for Intellectual Property Rights" was launched in April 2005.

Apart from the singing performances, an Intellectual Property Game Competition was held, in which 10 scout teams were competing for the "Best Intellectual Property Game Booth Design".

The IPKat can hardly imagine. Merpel notes, though that the word "funfair" is only one letter away from "unfair" - a word used with frequency and with vehemence by (i) business that complain they're not getting a big enough advantage over their competitors and (ii) consumers and users of IP-protected properties, who say they're being victimised. Is this a case of "what you gain on the swings, you lose on the roundabouts"?

Some fair intellectual property works here, here and here


More on implementation of the IP Enforcement Directive in the UK

Last week the IPKat posted a blog from an anonymous friend who expressed grave anxiety concerning the impact of the UK's version of the Enforcement Directive upon patent litigation. The same friend has had some further thoughts, this time on the enforcement of trade mark rights. He says:

"... the new rules do not apply to international trade marks because someone forgot to amend that well-known favourite, paragraph 6(5) of the Trade Marks (International Registration) Order 1996 (the talk in the tea room is of nothing else) which, I am sure you recall, is the equivalent to s.25 of the Trade Marks Act 1994 [the effect of failing to register a registrable transaction] and which even now remains as a restriction on damages recovery - meaning that the UK has failed to implement the directive and a further regulation is required in any event.

An interesting question to ask is what happens to damages enquiries that are already under way (a) in general, given that apparently the election between enquiries and accounts is abolished and (b) in relation to costs for late-registered rights? Presumably the patentee cannot recover costs of an enquiry. It's also interesting but painful to speculate on split costs orders".

Above right, and left: the UK implementation of the Enforcement Directive is causing serious headaches for IP lawyers

Indeed, mewses the IPKat, who would rather like to see a full-scale review of the incidents of registration (and non-registration) of transactions concerning IP rights. The registration provisions were introduced with the laudable aims of protecting the interests of rights-holders and furnishing valuable commercial information as to who was entitled to license (or work) an IP right. Yet systems for the protection of copyright and other unregistered rights seem to work surprisingly well without being able to confer those benefits. Are they really necessary now and, if they are, should they be standardised or rationalised throughout the European single market? Merpel says, it would be nice to know more about the abolition of the rule that you have to choose between damages and an account of profits, particularly with regard to the practice in other European jurisdictions in which it has never been necessary to make that election.

1 comment:

Anonymous said...

The election between an account and inquiry has not been abolished. Choosing an account remains an option as it is not inconsistent with having, as an optional alternative, a right to damages assessed in line with the new rules. The Directive permitted member states to retain more favourable treatment under their existing legislation (such as giving the additional option to go for an account of profits). Damages remain compensatory, as they have to be appropriate to the "actual prejudice" suffered as a result of the infringement.

Also, there is no suggestion that the regs are to have retrospective effect, and so ordinary principles of statutory construction, would suggest that they should not affect past infringements.

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':