For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Tuesday, 31 July 2007

Law, Ethics and the Visual Arts

The striking Gustav Klimt portrait of Adele Bloch-Bauer (1907), sold last year for the massive sum of $US135 million, features on the cover of the fifth edition of Law, Ethics and the Visual Arts by John Henry Merryman, the late Albert E. Elsen and Stephen K. Urice. This work is published by Kluwer Law International and you can get its details online from the Aspen website here.

What the publisher says:

"Since its first edition in 1979, Law, Ethics and the Visual Arts established itself as the leading art law text among law professors, students, and practitioners. This new and newly illustrated, fifth edition, revised in collaboration with Stephen K. Urice, incorporates recent changes in treaty, statutory, and case law. It includes discussion of recent developments from the resurgence of iconoclasm to military conflicts' depredations on cultural property. As in earlier editions, the authors present legal issues in their historical contexts.

The broad range of topics addressed in the 5th edition, makes the text especially adaptable for use in multiple classroom settings. These topics include:

* U.S. museums' return of works of art and antiquities to claimants such as Holocaust survivors and foreign nations
* Artist's rights such as copyright and moral rights
* International movement of art and antiquities
* Fakes and forgeries in the art market
* The inner workings of art auctions
* Plundering and destruction of works of art in times of war and military conflict
* Censorship of obscene or politically challenging works of art ...".
What the IPKat says: This is an impressive work which incorporates a vast amount of scholarship and information. It is however emphatically not a legal reference work for the practitioner in the conventional sense; nor is it didactic. It is in effect a giant source book, containing large quantities of primary and secondary legal sources and materials (including quotes from books, articles and even correspondence). The authors adopt a modest pose behind their contributions, which are carefully flagged "AUTHORS' NOTE" - but the relatively sparse nature of their input is in fact the book's great strength and its eloquence: the authors guide the reader through the issue while leaving the reader free to form his own opinions, rather than drag him through them in their pre-digested form.

Bibliographic details. Hardback US$352/euro €275. ISBNs 9041125183 and 13 9789041125187. xxix and 1324 pages. Also available in paperback at US$128/euro 100. Rupture factor: severe to crippling (lots of pages; heavy paper).

Summer surprise: British best at something ...

A press release reports that the UK Intellectual Property Office has published a productivity benchmarking study on patent grant procedure. According to the release,

" ... The European Patent Office (EPO), the German Patent and Trade Mark Office (DPMA) and the UK Intellectual Property Office (UK-IPO) have published an independent study [which you can download here as a pdf file] which benchmarks productivity in the patent grant procedure at the three offices. The purpose is to identify best practice in the patent search and examination procedures with a view to enabling each office to adapt its own practice in the interests of streamlining and efficiency. The study clearly identifies disparities in productivity between the EPO and the two national offices, although some of the differences are largely due to varying procedures.

... Wolfram Förster, head of the Controlling Office at the EPO, ... co-ordinated the study on behalf of the three offices [the study was actually conducted by Ernst & Young, though the press release omits this]

...

The study considers all patent searching and examination work done by the examiners at the three offices between September 2005 and August 2006. By carefully comparing the legal background and scrutinising the different patent procedures, it arrives at detailed conclusions about each office's working methods, leaving aside non-examination work and quality-related aspects. ... [I]nterviews were conducted with patent examiners at each office to ascertain the validity of the approach and identify potential problems and best practice.

While the underlying substantive law was found to be almost identical at the three offices, the study shows that productivity is significantly higher at the DPMA and UK-IPO, but that some of the differences are attributable to special features of the EPO's grant procedure. In general, the EPO was found on average to take 50% longer than the UK and German offices to produce its formal search and examination reports (products) and for its written and oral exchanges with applicants (communications). In terms of productivity, the UK-IPO sets the benchmark, coming slightly ahead of the DPMA (+3% for products, +2% for communications) and enjoying a marked lead over the EPO (+ 49%/+51%).

However, a large portion of these productivity differences may be due to procedural and structural differences between the EPO and the two national offices. For one thing, the results of the study are influenced by the written opinions which the EPO provides with its search reports. These were not considered for the purposes of productivity measurement because they are not issued on the same scale by the other two offices. Other important factors are the involvement of three-man examining divisions in the EPO grant procedure, where the other two offices employ only one examiner, and the impact of linguistic difficulties at the EPO (where not all examiners work in their mother tongue). In addition, the study identified problems posed for the EPO by poor translations of patent applications not originally drafted in one of its official languages. The study suggests that, together with a number of other factors, these may account for up to 45% of the productivity difference.

The study closes with an elaborate set of recommendations for implementation both inside and outside the three offices. These include general principles for balanced performance measurement and concrete proposals for enhancing the search documentation with non-patent literature. But they also encompass process-oriented improvements such as better allocation of patent files, and the suggestion that other offices from the EPO's member states and beyond might also take part in a benchmarking exercise".
The IPKat wishes to congratulate the UK patent examiners, many of whom read this weblog every day without any apparent loss of efficiency or professional skill. Merpel adds, when this item was posted, no sign of this benchmarking project could yet be seen on the website of the European Patent Office. The German Patent Office had however posted it pretty quickly. Both Kats agree that the name Wolfram is really cool.

Right: Wolfram

Monday, 30 July 2007

Council buys copyright in street signs

The IPKat was intrigued to read in Design Week that Westminster has bought the copyright in the Westminster street signs designed in the 1960s by Sir Misha Black, from his estate. The article claims that the signs will now ‘be protected against counterfeiters and copyright cheats for the first time in their 40-year history’

According to Councillor Danny Chalkley, cabinet member for transport and economic development, the Council

‘bought the copyright as we felt we needed to retain an element of control over the signs to maintain Westminster’s image as a world class tourist information.’

Humphrey (right) the official Westminster spokescat was unavailable for comment

The IPKat isn’t sure about this one. Surely much of the value comes from the names themselves (which won’t be protected), rather than the format in which they’re presented. Moreover, the Kat can’t really see how it’s helpful to the tourist industry to crack down on souvenir sellers, which presumably is the eventual aim. The Kat guesses that the Council thinks it’s on to a nice little earner of ‘official’ Westminster merchandise.

The Unpopular club: places where you hate to litigate

The IPKat's poll on the question "In which country would you least like to litigate your IP rights?" brought some remarkable results. There was some suspicion that China, long criticised for the opacity of its enforcement procedures, would have been the forum to avoid - but it was Russia that came out on top with 89 of the 281 votes cast. Equally surprising - and very hurtful to some readers who emailed the IPKat to complain - was the unpopularity of the United States, with 58 votes (21%). While the US is a very popular forum for US-based litigants, who know the system and often factor its vicissitudes into their business plans, it is far less popular with non-US defendants. This may be both because the damages awards often appear to be out of all proportion to any damage done through an infringement and because of perceptions of plaintiff-favouritism in East Texas.

A further surprise is the popularity of the previously much-disliked UK courts. Although they are often rightly criticised for their expense, the quality of the final decision is generally praised and it should be remembered that the vast majority of IP claims launched in the UK are efficiently settled long before trial. And we must not forget to congratulate Australia, for picking up only one unpopularity vote.

Community design right: little changes; Excess copyright

Courtesy of the IPKat's never-ending quest for legislative amendments to European Union IP law, here are two fairly obscure items for the cognoscenti:

Right: artwork from the registered charity Nine Lives Cat Rescue

* Commission Regulation 876/2007 of 24 July 2007 amending Regulation 2245/2002 (which in turn implements Council Regulation 6/2002 on Community designs) following the accession of the European Community to the Geneva Act of the Hague Agreement concerning the international registration of industrial designs;

* Commission Regulation 877/2007 of 24 July 2007 amending Regulation 2246/2002 concerning the fees payable to the Office for Harmonisation in the Internal Market following the accession of the European Community to the Geneva Act of the Hague Agreement concerning the international registration of industrial designs.

Excess Copyright is the name of a blog which the IPKat feels embarrassed not to have found before, since it has been going since January 2006. It's masterminded by Howard Knopf (left), who practises IP law with Macera & Jarzyna, LLP in Ottawa, Canada. Howard's manifesto is simple:
"Copyright is good. Excess in copyright is not. There are many parties in the copyright construct. All of them must avoid excess in order for copyright to be sustainable. This blog will explore when success is excess".
Here's his take on the recent Supreme Court of Canada 7-2 split decision in Euro Excellence v Kraft in which Kraft, the world's second-biggest food company, failed to stop an importer of its Côte d'Or and Toblerone chocolates from using its copyright-protected images on confectionery (the Côte d'Or white elephant and the Toblerone bear hidden in a mountain). He says (among other things) this:
"This is a major victory for those who who favour free trade and real competition. The core reasoning turns mainly on the hypothetical maker doctrine and the rights (or lack thereof) of exclusive licensees.The Court looked very carefully at comparative jurisprudence here. Although only briefly mentioned, I believe that Sir Hugh Laddie's material on the hypothetical maker doctrine and exclusive licenses from his major treatise on UK law was very influential".
The IPKat says, this blog looks pretty useful: it alloys news and comment in a clear, constructive manner and is worth following. Merpel says, I don't understand: if the bear is hidden in the mountain, how can you see it? If you can see it, how can it be hidden?

Bear mountain here
Bare mountain here

Sunday, 29 July 2007

IP hotting up in Oman

The Sultanate of Oman has suddenly got really excited about intellectual property. On 16 October 2007 it will be a fully-functional member of the Madrid Protocol on international trade mark applications, the Patent Law Treaty, the Trademark Law Treaty and the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure.

Left: Oman's Nakhl Fort - wouldn't this be a great location for an international IP conference, thinks the IPKat

More about Oman in general here

Friday, 27 July 2007

Friday freakout

Reliable as ever, the IPKat's friends have been sending him lots of lovely things to look at - and indeed even to listen to. Tomasz Rychlicki has sent him this link to the infamous Sony/BMG End User License Agreement (EULA) as sung by a women's choir and recorded by Brian Joseph Davis.

Right: "Hallel -EULA! Hallel - EULA!"


Meanwhile, it is reported (via Miri Frankel) that Jon Bon Jovi objects to the use of the name 'Mijovi' for a coffee-based energy drink which, he says, sounds too close to his own name. Mijovi's developer Marcos Carrington says that the drink is named after his girlfriend, Jovita, and not the rock star.

Really, says the IPKat? If so, why didn't he call it Jovita? Merpel notes that Bon Jovi has also taken issue with the drink's marketing materials, which include the phrases 'itsmijovi' and 'itsmilife' which, he says, resembles the title of his hit song 'It's My Life'. The rock star's lucky, she says, that The Animals, Paul Anka, Talk Talk and Cardcaptor Sakura didn't cut up rough about him taking the title of their song. Note for historians: when The Animals recorded "It's My Life" back in 1965, Jon Bon Jovi (born John Francis Bongiovi) was just three years old.

Suspicious mind, but no consent

Another bouquet to LexisNexis Butterworths for picking up this little case on its subscription-only service: it's Unilever plc and another v Morris & Son and another, a decision yesterday from Mr Justice Mann in the Chancery Division of the High Court for England and Wales.

Morris was a parallel importer of Unilever's SURF brand detergents. A batch of SURF products which Unilever marketed in Canada was sold on to brokers, who in turn sold them to Morris - who marketed them in the European Economic Area (EEA). Unilever sued for trade mark infringement, saying that they hadn't given consent for the resale of the goods in the EEA and seeking summary judgment. Morris agreed it needed consent to sell the stuff in the EEA, but argued that consent could be inferred from the fact that Unilever knew their Canadian customers sold the product to brokers, who in turn sold outside Canada, but did nothing to stop it.

Mann J allowed Unilever's application for summary judgment. On the basis of Morris's evidence [the IPKat says - this should read "lack of evidence"] there could be no argument that Unilever consented to the goods being sold in the EEA. Morris was relying on nothing more concrete than suspicions and beliefs that consent had been implied, but that was not evidence on which consent could have been found.

The IPKat really doesn't like these cases. Morris was not apparently legally advised. If he had been, he would almost certainly have conceded without a struggle; time and effort would have been saved, not to mention money. As it is, he will probably nurse grievances against a legal system that was unable to accept his suspicions and beliefs as a basis for implying consent - not to mention the grievances that all parallel importers feel when they're held liable for selling genuine goods and will never feel that they have done anything wrong.

Suspicious minds here
How to remove unwanted dirt here

2007 Top Brands chart unveiled

The IPKat has just discovered that the popular BusinessWeek/Interbrand Annual Ranking of The 100 Best Global Brands for 2007 has just been published. According to the press release:

"Google, Zara, Apple, and Nintendo are among this year's top gainers in BusinessWeek's annual ranking of The Best Global Brands. For the seventh consecutive year, BusinessWeek has teamed up with Interbrand, a leading brand consultancy, to publish a ranking of the top 100 global brands by brand value.

Reviving even a storied brand isn't easy once consumers have a negative perception of it. Just ask Ford or Gap, which lost 19% and 15% of their brand value, respectively, in this year's BusinessWeek/Interbrand annual ranking of the 100 Best Global Brands. Even such perennial winners as Coca-Cola (No. 1) can have trouble boosting their brand. The beverage giant claimed the top spot for the seventh year in a row mostly because it is big and everywhere, but it failed to further grow its reputation because its move into healthier drinks has yet to resonate.

Still, it's possible to stage a brand comeback. Several such stories emerged in this year's ranking. While it's tempting for a challenged brand to emulate the likes of Google (No. 20), Apple (No. 33), or Starbucks (No. 88), doing so can seem audacious at best, delusional at worst. A potentially more useful exercise: examining brands that have stumbled but recovered. Take Nokia Corp. (No. 5): The Finnish giant realized its focus on making cheap handsets for the developing world was hurting in the U.S. and Europe. Nokia released high-end phones aimed at both the consumer and business user and is showing strength in emerging and mature markets alike.

BusinessWeek chose Interbrand's methodology because it evaluates brand value in the same way any other corporate asset is valued-on the basis of how much it is likely to earn for the company in the future. Interbrand uses a combination of analysts' projections, company financial documents, and its own qualitative and quantitative analysis to arrive at a net present value of those earnings. Interbrand takes many ingredients into account when ranking the value of the Best Global Brands. Even to qualify for the list, each brand must derive at least a third of its earnings outside its home country, be recognizable outside of its base of customers, and have publicly available marketing and financial data.

BusinessWeek's special report, The Best Global Brands, (August 6th issue) will be available at http://www.businessweek.com at 5:00 p.m. (ET) on Thursday, July 26th and on newsstands Monday, July 30th".

For the full list of Top 100 brands and their ratings, click here and scroll down.

Recent books

Intellectual Property: the Many Faces of the Public Domain is edited by Charlotte Waelde and Hector MacQueen, both of the University of Edinburgh, Scotland. It's a lovely little book, well indexed too.

What the IPKat says (confession: this is Jeremy's endorsement, which appears on the Edward Elgar website):

"Of all cultural assets, the public domain is at once the most valuable and the most contentious. It is the source from which authors, inventors, designers and creators derive the building blocks with which they construct their intellectual edifices. Yet the status of so much of its content is ambiguous: each integer within the public domain may be free for all to use; it may be fused with other units to form a piece of intellectual property – or it may even simultaneously be both. The panel of contributors presents the views of creators and of consumers, of believers and of iconoclasts, of those who wish to retain the sanctity of the public domain as an open resource and those who see its justification not in what it contains but in what can be extracted from it for private gain. It is impossible to read this volume without putting one’s cherished notions at risk".
The publishers add:

"As technological progress marches on, so anxiety over the shape of the public domain is likely to continue if not increase. This collection helps to define the boundaries within which the debate over the shape of law and policy should take place".
For the record, the cast of contributors reads like this: Toby Bainton, Ann Bruce, John Cahir, Gillian Davies, Ronan Deazley, Graham Dutfield, Joanna Gibson, F.Willem Grosheide, John Howkins, Manfredi M.A. La Manna, Fiona Macmillan, Helen Wallace and Sue Mayer, Richard Susskind OBE, Antony Taubman and Bill Thompson - plus the editors.

Bibliographic details. xviii + 262pp. Hardback. ISBN 978 1 84542 874 7. Price £ 65, but with an online discount from the publisher which reduces it to £ 58.50. This book is also available as an ebook (ISBN 978 1 84720 558 2). Rupture factor: slim.



The second edition of European Data Protection Law: Corporate Compliance and Regulation, by Hunton & Williams partner Christopher Kuner, is in fact a rebranded work: its earlier emanation was European Data Privacy Law and Online Business, which dates from 2003. The publisher however is constant through the ages - Oxford University Press.

What the publisher says:

"Fully updated new edition covers the many legal developments in the area, including the first ECJ interpretations of the EU Data Protection Directive

Focus on data protection compliance for companies, with practical new sections on outsourcing of data processing, records management, processing of employee data, and security breaches

Extensive appendices include texts of relevant directives, model contracts, and charts with Member State implementations, making this a single comprehensive reference source for EU data protection law affecting companies

Comparative approach taken, with a section on the interaction of EU data protection law with national laws

The new edition of this acclaimed book gives a fully updated overview of European data protection law affecting companies, incorporating the important legal developments which have taken place since the last edition was published. These include the first three cases of the European Court of Justice interpreting the EU Data Protection Directive (95/46), the Commission's first report on the implementation of the Directive, the Data Retention Directive, new developments in international data transfers, conflicts between security requirements and data protection, and the implementation of the Electronic Communications and Privacy Directive 2002/58 in the Member States. It also covers the recent European Court of Justice decision on the controversial export of airline passenger data to the US, and expands its European overview to include the new and acceding Member States.

The book contains comprehensive coverage of data protection law, while at the same time providing pragmatic guidance on the typical compliance issues that companies face. As globalization of the world economy continues, an increasing number of business issues with data protection implications have come to the foreground, for example, outsourcing, whistleblower hotlines and records management, all of which are covered in the book. The appendices have been expanded to include most sources which a company will need, such as the texts of relevant directives, the safe harbor principles and FAQs, and charts of implementation in the Member States of specific provisions of interest to business. Thus, the book is a single reference source for companies faced with data protection issues".
What the IPKat says: As a dyed-in-the wool European, I appreciate the clarity with which the US Safe Harbor provisions and the practical effects of their interrelationship with the law in Europe are explained. And, by the way, the text isn't as daunting as the size of the book suggests - there's about 200 pages worth of Appendices, including the Standard Contract Clauses and a good deal of detail about national requirements that can easily be overlooked.

Bibliographic details: price: £125 (hardback). ISBN-13: 978-0-19-928385-9. xxxvii + 552 pages. Online details here. Rupture factor: higher than average.

Thursday, 26 July 2007

Signs and wonders from the UK-IPO

The folks at the UK-IPO have issued a shiny new PAN (7/07) on s.3(1)(a) examination practice, in the light of the ECJ’s Dyson ruling.

Says the PAN, there are three situations in which a thingy [there’s no technical term left for this – the IPKat is used to calling things which aren’t marks signs, but of course, these aren’t even signs] won’t be considered a sign:

1. where the subject of the application is a mere property of a thing

2. where the application is to protect an idea, rather than the fixed expression of the idea, e.g. a theme [the IPKat was convinced beforehand that the idea/expression dichotomy was a useful conceptual tool for trade mark lawyers – he’s glad the UK-IPO agrees]

3. applications to register extended moving imagery. These can’t be considered a single sign

The Notice goes on to state that the requirement that the thingy be a sign is separate from the graphic representation requirement, though there may be an overlap.

So far so good, however, the finds the last section a tad worrying. This deals with the ‘which is capable of distinguishing goods or services of one undertaking from those of other undertakings’ element of s.3(1)(a). It states that it covers applications which ‘no capacity to serve this primary distinguishing function’. The example of SOAP is quoted, and Jeryl Lynn is cited, with the explanation that ‘The ‘mark’ applied for is nothing more than the common name for the goods; such a ‘mark’ has no capacity to serve the essential function of a trade mark, no matter how much ‘use’ has been made of it’. The IPKat isn’t really sure about this. Hasn’t the ECJ told us that Art.3(1)(a) does nothing different from Art.3(1)(b) when it comes to distinctiveness? Also, the UK-IPO appears to be treating some marks as a priori unregistrable, which is contrary to the ECJ’s approach to basically every type of sign up until now.

Highcross Quarter

The IPKat's friend Lauren Ezekiel, IP staff writer for IP World, has sent him a delightful little story, though he's none too sure where she got it from. The gist of it is that property developers Hammerson were forced to change the name of a new £350 million shopping centre in Leicester, England, after a group of witches and wizards maintained that it had special significance for them. The centre was originally going to be called “Highcross Quarter”, but the witches and wizards said this was the pagan and Wicca name for an important date in their calendar.

Members of the local coven instantly registered the relevant domain names and uploaded them with information on the group’s beliefs. Hammerson apparently contacted the group via the World Intellectual Property Organization and offered a large sum of money for the domain, which was rejected. After a year-long battle the name has been changed to the less controversial “Highcross Leicester”.


Left: The IPKat has not yet abandoned his attempts to learn Quidditch ...

Highcross Quarter websites here and here
Three Witches here
Strange Brew here

Wednesday, 25 July 2007

Sole and Small IP folk meet

The dynamic duo of Mark Jefferiss and Allan James, both from the UK Intellectual Property Office, were the star turns at this evening's meeting of the Sole and Small IP Practitioners' Group.

Right: a likelihood of confusion caused by similarity - the classic relative ground for refusing a trade mark

Hosted in the rather lovely Bedford Row, London, offices of Collyer Bristow, the meeting was regaled with exciting tales of how the UK Trade Marks Registry is adjusting itself to the prospect of a life in which, instead of preserving existing trade marks from later applicants whose marks are vulnerable to refusal on relative grounds (see here for Euro-version under Directive 89/104), all they have to do now is give notice to the owner of the earlier right and then let nature take its course.

The speakers explained a great deal about how the new scheme is to work, once it kicks off on 1 October. The Registry has helpfully put up plenty of details on its website here, but it was clear from the meeting that many of those present had concerns that went a lot further. Some random points that were either mentioned or occurred to the IPKat are as follows:

* owners of UK trade marks and of Madrid Protocol marks designating the UK will be automatically notified if a potentially objectionable application is filed - but proprietors of Community trade marks and of Madrid registrations designating the European Union will not be notified unless they file form TM6 and pay £50 for the privilege of being notified for three years;

* the TM6 will be available as an online form only. Once it is completed, the CTM owner will receive notice of any potentially adverse application by email. UK trade mark owners will be notified by snail mail (left) - since the Registry doesn't (yet) have everyone's email addresses;

* there presumably isn't a Phil Collins-style discrimination problem here since all holders of UK rights are notified regardless of their nationality while all holders of CTM rights are not notified, equally regardless of their nationality;

* here's a due diligence point: when acquiring a portfolio of trade mark rights that include CTMs, it's worth checking to see whether a TM6 was filed;

* and here's an interim relief point. Will the fact that a CTM holder was notified of a potentially adverse UK trade mark application but did nothing immediately at the time be regarded as a delay that counts against its claim that the interim relief it seeks is urgent?

* however hard you try, you won't be able to get the trade mark examiners involved in lengthy correspondence. There are tight time limits and each side gets one shot at influencing his or her mind;

* where the owner of a CTM has exercised its option to be notified by filing its TM6, this should be visible on the Registry's online records from 1 October.

If you want to know more about the Sole and Small Practitioners' Group, just email Barbara Cookson here.

UK Gov: no copyright extensions (for now)


Perhaps things are changing after all, now that we have a new PM. The UK Government is reported to have rejected the idea of extending the term of copyright for sound recordings and performers' rights (see previous IPKat mewsings on the subject here, here, here, here and here).

(Right: What are Cliff and Roger really looking for?)

The British music industry, as well as certain high profile ageing artists such as Cliff Richard, and Roger "hope I die before I get old" Daltrey are apparently not best pleased about it, but will carry on lobbying at the European level in their attempts to further extend copyright (and top up their respective profits and pension pots).

The IPKat wonders: what could Cliff and Roger possibly have in common that they want these terms extended so badly? Why isn't Pete Townshend joining in?

More lobbying for extensions here, here and here.

Lipitor-on-the-Liffey

The IPKat has just heard today from his Irish friend David Brophy (FR Kelly, Dublin), who tells him that the Irish High Court has issued the latest judgement -- alas not yet published -- in the multi-jurisdiction Lipitor litigation between Pfizer and Ranbaxy. The court came down in favour of Pfizer (or more precisely, in favour of Warner-Lambert Company, the Irish patentee). David writes:

"The proceedings concerned Ranbaxy’s application before Mr Justice Clarke for a declaration of non-infringement of Warner-Lambert’s patent. There was no challenge in these proceedings to the validity of the patent. Apart from its inherent interest in notching up another victory for Pfizer, the Irish judgment is of particular significance because of the rarity of fully contested Irish patent cases on infringement issues. It provides practitioners with long-awaited guidance on claim construction, considering that the last published High Court decision in this regard is believed to be the Wavin Pipes decision which can be found in the 1982 Fleet Street Reports, and which predates Ireland’s adherence to the European Patent Convention and the famous Article 69 protocol.

In what is a very comprehensive and polished decision, Mr Justice Clarke endorses the decision of the UK House of Lords in Kirin-Amgen (see IPKat note here) and follows with approval the decision of the Court of Appeal in the corresponding English proceedings between the parties.

In an aside, the judge notes that Ranbaxy were represented in part by counsel from London who had acted in the same UK proceedings, but who argued that the English Court of Appeal had misconstrued Kirin-Amgen. Mr Justice Clarke said “The irony of London counsel inviting me to hold that the English Court of Appeal was wrong, while Dublin counsel argued that it was right, is not lost on me.”

He went on to note that he nevertheless had to form his own view as to the proper principles applicable as a matter of Irish law. In this regard, he held that the courts should avoid a formal claim interpretation which “no rational Patentee would have intended” but stated that this does not go so far as to unduly favour an interpretation which might be perceived to be more commercially beneficial from the perspective of the patentee.

On the technical issues, he noted the express exclusion of the cis-isomers, and following an analysis of the description and claims he concluded that he could not find compelling good reasons why the skilled person would have interpreted the claim to be limited to the racemic trans mixture or indeed to one or other trans enantiomer. He concluded therefore that claim 1 included both individual trans enantiomers and also any mixture thereof. It thus followed that Ranbaxy’s product, being based on the R-trans enantiomer, infringes the patent".

The IPKat thanks David for this information and looks forward to seeing the decision once it is available in full.

Duncan Bucknell's Lipitor scorecard patent litigation scorecard here
Irish Patents Office here

UK-IPO recruitment/IPKat competition

The UK Intellectual Property Office is advertising some vacancies for trade mark examiners.

Right: an examiner (from Mostly Banal, which a cynic would doubtless describe as part of the job description)

According to the job specification, the skills and attributes required are:

* Well developed analytical ability; to analyse general guidance, to understand and interpret complex legislation, associated rules, case law and practice and apply it to individual cases.

* Strong written and oral communication skills; the ability to communicate effectively with staff, senior colleagues and user interests in a variety of forms (written, face to face, telephone).

* Customer orientated approach; in dealing with professional practitioners and unrepresented applicants

Left: an applicant demonstrates her "customer-oriented approach"

* Ability to organise and prioritise workload;

* A good team player.


Right: "a good team player"-- down in Newport each trainee examiner is taught how to commit a "professional foul"

The IPKat knows better, so he's running a competition. Readers are invited to submit, by close of play on 31 August 2007 (that's midnight, British Summer Time), the five criteria that a successful trade mark examiner really needs. just email the IPKat here with your answers. As usual, the winning entries will be posted on this weblog. The prize is complimentary admission and a FREE LUNCH at the CLT Intellectual Property in the Fashion Industry conference on 20 September (see here for full programme details). This competition is open to trade mark examiners who are currently employed at UK-IPO but, if they prefer anonymity, they are advised to type the word "insider" on the title line of their entries so that their names will not be accidentally revealed.

Courts get tough with infringers, well, almost ...

Well done, LexisNexis Butterworths for picking up these two cases on its subscription-only updates.

R v Blower (a.k.a. Robinson) [2007] EWCA Crim 1775 is a decision of a court that rarely features on this weblog, the Court of Appeal, Criminal Division, for England Wales. It's actually a ruling that dates back to 26 June from a two-man appellate court (Mr Justices Stanley Burnton and Mr Justice Wilkie) on a sentencing issue.

The police searched a car park and Blower's home, where they found a load of counterfeit DVDs, CDs, Playstation discs and computer equipment. Almost a year later the police arrested him when he was trying to sell counterfeit DVDs from the boot of his car; they then found computer towers in another vehicle which had CD drawers that were used specifically for copying disks.

When Blower was eventually prosecuted, after the charges were shuffled around several times, he pleaded guilty to three counts of unauthorised use of a trade mark. A pre-sentence report stated that Blower was someone who regularly committed offences of dishonesty when tempted to do so by receiving an opportunity for easy gain; he had nine previous convictions for 13 offences, including seven of theft, one of fraud and one against property. The offences included a number of handling offences, for one of which he had received a sentence of nine months' imprisonment.

Giving sentence, the trial judge noted that Blower had pleaded guilty at a 'somewhat belated' stage, though he accepted that this delay was not a reflection on Blower himself. He also noted that the man had been involved in three separate incidents over the course of a year. Accordingly he chose a starting point for a custodial sentence of 18 to 24 months. Taking into account the delay, the time that had passed and the plea of guilty, the judge indicated that he would reduce the proposed sentence by 25 per cent. In the event, Blower was sentenced to 14 months' imprisonment on each count, to be served concurrently.

Blower appealed, contending that this sentence was manifestly excessive in all the circumstances. In his view the judge should have given him a one-third, rather than one-quarter, discount on the basis of his guilty plea, and that the judge's starting point of 18 to 24 months was too high.

The Court of Appeal dismissed the appeal. In their view the judge was entitled to state that the pleas of guilty were somewhat late and that, accordingly, credit for pleading guilty would be decreased. It was not an error in principle to allow only a 25 per cent reduction for the guilty plea. The starting point was appropriate and, in all the circumstances, the sentence was not manifestly excessive.

Left: to aid the exercise of judicial discretion, this handy device provide guidance on the reduction of guilty pleas of between 1 and 50%.

It seems to the IPKat that the English and Welsh courts are taking IP crime much more seriously than they used to. The defendant in this case was, relatively speaking, a small-timer. Will the courts take the same view of discounts where guilty pleas are entered in far more complex cases where the saving to the tax-payer is much greater when the pirate hauls up the white flag and surrenders?

Really long sentences here and here


Phonographic Performance Ltd v Gough is a Chancery Division decision on Monday from Mr Justice Mann. PPL - an organisation that collectively administers and enforces rights in sound recordings in the United Kingdom - sent Gough two letters before action in respect of alleged infringement of the copyright in a number of sound recordings. Getting no answer, PPL secured judgment in default of defence. This order, which banned Gough from infringing the claimant's copyright, was sent by PPL's solicitors to Gough himself, helpfully accompanied by an estimate of the relevant licence fees so that Gough could obtain a licence. In December 2006 this order was formally served on Gough, who subsequently engaged in negotiations with a view to obtaining a licence. In July 2007 Gough applied to set aside the judgment against him, saying (among other things) that he never received PPL's application for default judgment.

Mann J dismissed the application. If you're going to set aside a judgment, he said, certain factors had to exist. For example there had to be (i) a defect in the proceedings, (ii) some other reason why the applicant should not be subject to the judgment, (iii) a defence worthy of being tried and (iv) prompt action in making the application. Gough said he had not received certain documents sent to him by PPL, including the application for default judgment. It was most likely that he had received those documents but, even if he didn't, what was his defence to the proceedings going to be?. It was clear on the evidence that Gough had infringed copyright in the sound recordings - indeed Gough even admitted doing so. This being so, he clearly had no defence. Further, Gough had acted far from promptly in making his application, having been served with the order in December 2006 but making no application till July 2007.

The IPKat feels really annoyed that money which PPL and it sister collecting societies could be paying to its deserving members gets wasted by pointless and unmeritorious litigation of this nature. Merpel wonders if Mr Blower and Mr Gough know each other. They appear to have a good deal in common.

Tuesday, 24 July 2007

And then there were two ...

Although his only contact so far with Singapore has been the very pleasurable hours he has spent at Changi airport, having a relaxing shower between flights and being spellbound by the electronic toys on offer there, IPKat team blogger Jeremy has taken a keen interest in the Singapore Treaty on the Law of Trademarks - for which this small and prosperous state is justly famous.

Right: Switzerland's instrument of ratification

The IPKat has now learned from his high-up contacts at WIPO, who kindly sent him a press release, that the Swiss Confederation has deposited its instrument of ratification of the Singapore Treaty. The date of entry into force of that Treaty, says the press release, will be notified when the required number of ratifications or accessions is reached in accordance with Article 28(2) of the Treaty.


Left: Culture shock -- Swiss chocolate meets Singapore weather


Switzerland now joins Singapore as the only other nation to have signed up. This Article 28(2) reference, says Merpel, is just a tediously uninformative way of saying "This Treaty shall enter into force three months after ten States or intergovernmental organizations ... have deposited their instruments of ratification or accession". Why doesn't the press release just say that instead giving us all that pompous diplomatic claptrap about "The Director General of the World Intellectual Property Organization (WIPO) presents his compliments to the Minister for Foreign Affairs and has the honor to notify him of the deposit by the Government of the Republic of Singapore"? Just give us the information we poor mortals need to know ...

Other countries beginning with "S" and whose instruments of ratification are awaited include the Sahrawi Arab Democratic Republic, Saint Vincent and the Grenadines, São Tomé and Príncipe and Somaliland.

Monday, 23 July 2007

Man and Superman

The IPKat has learnt of an interesting decision from the OHIM Second Board.

DC Comics applied to register SUPERMAN as a word mark (CTM) for lots of goods and services. This was opposed by the proprietor of the German MAN stylised word mark for a number of identical and similar goods or services.

The Opposition Division rejected the opposition and the OHIM Second Board agreed.

The fatal fact for the owner of the MAN mark was that it was just not similar enough to the SUPERMAN mark for any of the relative grounds to stick. Although there was some visual and phonetic similarity due to the presence of MAN in both marks, the conceptual meaning of SUPERMAN as the famous superhero meant that conceptually the two marks were very different. In reaching this conclusion, the Board took ‘judicial’ notice of the fame of Superman, the comic book hero and also noted that, while usually SUPER would be discounted as descriptive and non-distinctive, here it turned an ordinary word into something with a strong conceptual meaning.

The strength of the conceptual element of the mark and its distance from the term MAN meant there was no likelihood of confusion. It also put pay to an Art.8(4) claim since, according to OHIM, there are no national laws which do no require similarity of marks. The distance between the two marks also meant that consumers would not make the link between them required for Art.8(5).

The IPKat reckons that this is a common-sense decision. He’s a bit worried though. Were it not for the fame of SUPERMAN, would the proprietors of the MAN mark have been able to stop the registration of any mark containing an element as basic as ‘man’?

Latest Trademark World, ECDR, EIPR

The IPKat had hoped to be saving a little pile of reading up for a pleasant session in the garden, but since his garden has been all but washed away by the summer storms he is reduced to reading the July/August 2007 issue of Informa's near-monthly Trademark World in his rather stuffy office. This issue has a very exciting cover picture of a t-shirt with the words "Frankie goes to the Registry" printed on it. It's really more a matter of "Frankie goes to Newport, Gwent", where the UK Trade Mark Registry is having lots of fun dealing with the fall-out from disputed trade mark applications by well known bands. The story is by David Brooks, who currently plays with a much-touted band called Taylor Wessing. Other features in this issue include

* "The Pharmaceutical Industry Nightmare in Brazil" by old-time IP star Denis Allan Daniel, formerly of Daniel & Cia but who has now reformed as Daniel Advogados), the nightmare in question being the Brazilian government's initiative in promoting the compulsory licensing of pharma products and boosts for the local generics industry. Apart from being a really nice man and a fine lawyer (left), Denis (right) has also managed the England football team - but never got them to play like Brazil ...;

* " 'Starr' Wars", by Clayton Utz, Sydney, IP Director Brian Elkington - a short, sharp review of the dichotomy in Australian trade mark law between marks which are "substantially identical" and those which are "deceptively similar" - the former have to be compared side-by-side, the latter by other, more arcane techniques. The law as described is so bizarre that it seems impossible for it to have originated in Australia rather than from Luxembourg.

Slinking attractively through his letter box, the IPKat's copy of the bimonthly European Copyright and Design Reports, published by Sweet & Maxwell, is full of fascinating cases. This issue includes

* Plon SA v Hugo - the Cour de Cassation ruling on whether the writing of a posthumous sequel to Victor Hugo's national treasure Les Misérables was an infringement of moral rights, on whether attempts to suppress sequels were contrary to human rights and whether the French authors' collecting society was entitled to police the moral integrity of sequels [the IPKat adds: this case has been remitted to the Cour d'appel de Paris - with luck, the litigation might run for as long as the London musical of the same name];

Left: If they were only alive today ...! Victor Hugo pondering over his controversial sequel, Harry Potter and the Notre-Dame de Paris

* Kalogiannis v Mastorakis (Greek Supreme Court): a ruling on the degree of creativity needed before a photograph becomes an original copyright-protected work in Greece;

* Finn No AS v Supersok AS (Trondheim District Court): the Norwegians get their teeth into deep-linking under marketing laws and trade mark laws.

More on Les Mis here.


The August 2007 issue of the European Intellectual Property Review, also published by Sweet & Maxwell, has come out early. This issue carries a lead Opinion by veteran Geographical Indications proponent Bernard O'Connor on how, with a little objectivity, disputes between GI-ers and trademarkers as to the best way to protect such indications can be resolved or avoided. Other features include
* an analysis by Kanchana Kariyawasam (University of Queensland, Australia) on access to biological resources and benefit-sharing, viewed from the standpoint of cooperation within the South Asian Association for Regional Cooperation countries;

* a note by Richard Arnold QC on the House of Lords' ruling on the Douglas v Hello! dispute (noted briefly here by the IPKat).

Small claims, big issues

The IPKat has been mewsing over a RAPID press release from the Commission entitled "Council adopts common position concerning Regulation establishing a European Small Claims Procedure". In relevant part this press release reads:

"The Council adopted today its common position concerning a proposal for a Regulation of the European Parliament and of the Council establishing a European Small Claims Procedure. The aim of the Regulation is to simplify, speed up and reduce the costs of litigation concerning small claims by establishing a European Small Claims Procedure to be available to citizens as an alternative to the procedures existing under the laws of the Member States. ...

Right: the Council has also proposed a Small Clams Court, to deal with non-identical infringements. This should suit litigants on a tight budget, who don't want to shell out too much money.

* The procedure will apply in civil and commercial matters where the value of a claim does not exceed 2000 €. The procedure applies to pecuniary claims as well as to non-pecuniary claims.

* In order to reduce costs and delays, the European Small Claims Procedure provides for several procedural simplifications, introducing standard forms to be used by the parties and the court and establishing time limits for the parties and for the court in order to simplify and speed up litigation concerning small claims.

* The procedure shall be a written procedure, unless an oral hearing is considered necessary by the court. The court may hold a hearing or take evidence through a video conference or other communications technology if the technical means are available.

* Moreover, the parties shall not be required to be represented by a lawyer or another legal professional and the court shall determine the means of taking evidence and the extent of the evidence necessary for its judgment under the rules applicable to the admissibility of evidence. It may admit the taking of evidence through written statements of witnesses, experts or parties.

Left: costs will be kept low

* The unsuccessful party shall bear the costs of the proceedings. However, the court shall not award costs to the successful party to the extent that they were unnecessarily incurred or disproportionate to the claim.

* The judgment shall be enforceable notwithstanding any possible appeal. The provision of a security shall not be required.

* Finally, the Regulation abolishes the intermediate measures to enable the recognition and enforcement of a judgement given in a European Small Claims Procedure. A judgment shall be recognised and enforced in another Member State automatically and without any possibility of opposing its recognition.

The new procedure will apply from 1 January 2009".

What the IPKat wants to know is how this proposal will affect intellectual property disputes. The assumption has always been that IP matters are big stuff, to be heard in specialist courts where possible. But IP litigation has always been big and costly simply because there has been nowhere cheap and easy for litigants to go. Merpel says, I don't recall the term "small claims" cropping up in the IP Enforcement Directive 2004/48 ...

Sunday, 22 July 2007

Can't stoppit, Toppits!

Glen Gibbons was first to send the IPKat a link to a decision from the Irish High Court last month but which only recently seems to have surfaced as a web link. The decision, Cofresco Frischalteprodukte GmbH & Co KG v Controller of Patents, Designs and Trade Marks; Reynolds Metals Company [2007] IEHC 187, was delivered by Mrs Justice Finlay Geoghegan on 14 June 2007.

Reynolds applied to register as a trade mark the word TUB-ITS for “storage containers, not of common metal, for household and kitchen use” (Class 21). Cofresco opposed, citing its earlier Community trade mark registration of the TOPPITS logo for identical and similar goods. The main ground of opposition - one of many, it seems - was likelihood of confusion, by virtue of similarity of the marks and identity/similarity of goods.

The Irish Patents Office rejected the opposition: in the first place any likelihood of confusion was reduced by the fact that the average consumer was likely to pay at least as much attention to functional considerations as he would to brand names when purchasing plastic kitchen and household containers. As to the marks, Cofresco's was defined by its look and sound and its lack of meaning, while the dominant aspect of Reynolds' mark was its meaning (“put it in a tub”). In any event the distinctiveness of Cofresco's mark stemmed from bits of it that were different from those which rendered Reynolds' mark distinctive, so they consequently did not contribute to a likelihood of confusion. Cofresco appealed.

Mrs Justice Finlay-Geoghegan dismissed the appeal, but not before she rapped the hearing officer on the knuckles. She said (among other things):

* where goods are sold to the general public for domestic use, a judge can bring his or her own experience and common sense as a potential purchaser to bear in assessing the likelihood of deception and in determining the probable purchasing scenario of the goods in question in which the likelihood of deception must be determined.

* In this case no very careful or in-depth examination of the relevant trade marks would be made in the purchase of the goods concerned by consumers, who may not have both products before them at the time of making the purchase decision and with only an imperfect picture of the respective marks in his mind.

* the hearing officer was wrong to discount the likelihood of confusion by reason of his view that the average consumer would be likely to pay at least as much attention to functional considerations as he would to brand names in choosing plastic kitchen and household storage containers.

* While there was some aural similarity, the two marks were insufficiently similar to induce confusion. A contrary finding by the Rechtbank’s-Gravenhage (District Court of the Hague, The Netherlands) last year in a similar dispute might be explained by linguistic differences between Dutch and Irish English-speakers as well as by the fact that evidence of the earlier mark’s large degree of distinctiveness that was accepted before the Dutch court was not put before the court in Ireland.
The IPKat has been pondering over the learned judge's view that the hearing officer was wrong to say that the average consumer would be likely to pay at least as much attention to functional considerations as he would to brand names in choosing plastic kitchen and household storage containers. This is probably true with regard to word marks and logos, but can the same be said of trade marks consisting of product shapes or their containers or packaging, where the marks under comparison may have a functional element. Merpel says, if I were ordering these containers over the phone, I'm not sure I'd be so sure I could confidently tell TOPPITS from TUB-ITS. But then I'm just a fictional cat, not an average consumer.

Right: plastic containers and their friends as art - a lovely conception by Jessica Stockholder

Kats' chorus: why in Irish oppositions do opponents still persist in raising every ground of opposition known to man, when they only seriously argue one or two of them? Surely this contributes to global warming and should be stopped now.

Toppits you can eat here; Toppits you can't eat here
Tub-its here
Tebbits here

Saturday, 21 July 2007

Downloading - the decision

Probably unnoticed by most, but not by the eagle-eyed IPKat, an 'interim' decision of the Copyright Tribunal has just issued, and is available from the UK-IPO website here. Led by His Honour Judge Fysh, the Tribunal has been considering various questions put to them relating to how collective copyright licensing can work in the age of digital downloading and streaming. Various big players in the music industry, including the British Phonographic Industry, Sony and iTunes, as well as the three big mobile phone companies in the UK, wanted to know how the collecting societies should be collecting money for the use of digital works online.

Together, the applicants, respondents and interveners were willing to stump up around £12 million in costs to get the decision made. The decision must therefore be an important one. Unfortunately, the IPKat is unable to make any sense out of it, what with all the talk about JOLs, webcasting (both 'pure' and 'special') and the troubles associated with 'Double Dipping' (which the IPKat thought was all about sherbet). It's all a bit too much for his little feline brain to cope with. Can anyone out there help?

More confused cats here, here and here.

Update: Many thanks to Ben Challis (www.musiclawupdates.com) for providing the following clarification:

"The UK Copyright Tribunal has returned its decision in relation to the rate paid to songwriters and composers when their music is used in online music services. The Tribunal has endorsed a settlement agreement negotiated in September 2006 between the MCPS-PRS Alliance and the majority of the online music industry. The Tribunal concluded that this agreement should be the basis for the template for online licensing in the future.


The royalty rate to composers, songwriters and music publishers when their works are exploited for online and mobile in the UK has been under scrutiny for the last two years. In June 2005, the MCPS-PRS Alliance was referred to the UK Copyright Tribunal by a consortium of music users. This was made up of: The BPI (representing over 300 record companies), The Digital Service Providers (AOL, Apple iTunes, MusicNet, Napster, RealNetworks, SonyCONNECT and Yahoo), and The Mobile Network Operators (O2, Orange, T-Mobile and Vodafone). In September 2006, the BPI withdrew from the Tribunal process by signing a settlement agreement with the Alliance which sees composers, songwriters and publishers receiving 8% of gross revenue (excluding VAT) when their music is made available for download, limited download or by on-demand streaming. A rate of 6.5% was negotiated for webcast services. Importantly the concept of minimum royalties was agreed for all services. This ensures that music creators receive payment for their work when it is used online in all cases, for example, where music is bundled with other products and services, offered free as an attraction for other products, or as a loss leader.


Four of the Digital Service Providers (iTunes, MusicNet, Napster and SonyCONNECT) and four UK mobile network operators (O2, Orange, T-Mobile and Vodafone) also agreed these rates. The Mobile Network Operators and iTunes sought additional clarity from the Tribunal on two discrete issues relating to how revenue is defined. However the Alliance was not able to reach a settlement with the remaining Digital Service Providers (AOL, Real and Yahoo) who continued with their reference to the Copyright Tribunal. Between September 2006 and January 2007, the Tribunal sat to hear the case brought by AOL, Real and Yahoo and to determine the remaining issues on the revenue definition brought by iTunes and the four mobile network operators


The Tribunal decision confirms that songwriters, composers and their publishers should receive 8% of gross revenues from online music service providers for on-demand services including downloads and subscription streaming services, 6.5% of revenues for interactive webcasting services and 5.75% for non-interactive webcasting. The difficulty in finding a ‘royalty base’ (ie what actually constituted “Gross Revenues”) was also considered (with digital service providers keen to exclude revenue sources not directly linked with music content and the Tribunal decided that “no definition of Gross Revenue will perfectly balance the interests of all concerned” and therefore an “Independent Online Adjudicator” was recommended as a mechanism to resolve future disputes of what is and isn’t a revenue stream that can be levied. However the Tribunal decided revenues which attract the royalty should include at least: “in-stream advertising” and where “music actually offered” forms the sole content or predominant part (75%) of a page with advertising. In certain situations, small specific deductions from the Gross Revenue base (e.g. for the costs of obtaining the advertising) would be considered reasonable."

Ben also points out an article in the Guardian about the situation regarding web radio in the US.

Friday, 20 July 2007

Friday fiddlings

The website of the Court of Justice of the European Communities has lots of useful contact information, but the IPKat has been unable to find the contact details of anyone who is responsible for dealing with complaints. Can anyone tell him who is responsible? The IPKat thinks that if enough of us email the Court every time a decision is posted on the website in one or more languages that do not include English, we should at least be able to make our feelings felt. Helpful information should be posted below or sent to the IPKat here, please.

Right: this is Vassilios Skouris, President of the ECJ. He has such a kindly face and is obviously a great diplomat. Perhaps he can help us get our English translations.


Don't forget the meeting for sole and small IP practitioners next Wednesday (see here for details). It's now known that Mark Jefferiss from the UKIPO is coming along and will be saying something topical about the handling of UK trade mark applications: he's also bringing his ears with him and will listen attentively to any constructive comments.

Left: an okapi, perturbed over the likelihood of confusion between OKAPI and UKIPO ...


Read here in the Telegraph about how four US prisoners tried to escape from prison by copyrighting their names. The IPKat says, this can only happen in the United States. Merpel adds, how the miaouw do you copyright your name? This looks like another journalistic whoopsie based on IP concept confusion.

Right: it seems there were legal bars to this IP scam succeeding


Plagiarism can prove a point quite neatly. Frustrated novelist David Lassman has received wide media coverage, in the UK at least, for his stunt in sending chunks of Jane Austen's novels to publishers and literary agents, changing only the names, to see what their reactions would be. Only one of the eighteen recipients spotted what he'd done - Alex Bowler, assistant editor at Jonathan Cape. But he immediately destroyed his credibility among IP lawyers by writing:

"I suggest you reach for your copy of Pride and Prejudice, which I’d guess lives in close proximity to your typewriter and make sure that your opening pages don’t too closely mimic the book’s opening. After all, there is such a thing as plagiarism and I’d hate for you to get in any kind of trouble with Jane Austen’s estate".
Jane Austen died in 1817.

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