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, 12 February 2008

The Sign of the Rampant Hewitt: is it a patent?

The IPKat's friend Craig Smith (a Senior Associate with Freehills, Australia) has written to the IPKat as follows:

"I’m not sure whether you are still maintaining the rage on misreporting of IP matters in the media, but I couldn’t resist sharing a recent news story from one of Australia’s main broadsheets. The journalist is reporting on Lleyton Hewitt applying for an Australian trade mark registration for a logo that is based on his somewhat annoying self-congratulatory antics on the tennis court (it’s number 1212274, accessible here after clicking ‘enter as guest’ and then putting the number into the last search field) [the IPKat tried this and couldn't gain access, but the picture, above right, lets you see what the original gesture's like]. From his long list of goods he’s even apparently intending to use it for selling lingerie!.

The journalist manages, in the one article, to describe the gesture as being protected as a trade mark, by copyright, and by a patent, in addition to Lleyton Hewitt having “effectively copyrighted his family by selling exclusive rights to his 2005 wedding and the subsequent safe delivery of baby Mia to Woman's Day” (story here). Not a bad effort (although she failed to include any reference to registered design protection)".

The IPKat remains perpetually dismayed at the level of ignorance displayed by journalists, but something he finds almost as annoying is the superfluous "L" at the beginning of the forename "Lleyton". Can anyone explain it? Merpel asks, surely the performance of the gesture by another tennis player, or indeed anyone else, doesn't fall within the definition of an infringing act in relation to the logo itself?

He missed out: the famous gesture that Winston Churchill forgot to register as a trade mark.

STOP PRESS: the IPKat thanks all of you who have written in with copies of the logo itself. Craig actually supplied a sample with his original letter but the Kat was having a fumbly sort of day with his computer and couldn't quite find a way of copying the image to his hard disk so that he could load it up for the blog. For the record, it's reproduced here on the right.

11 comments:

Joff Wild, IAM magazine said...

There was a similar type of story in The Times last week:
http://business.timesonline.co.uk/tol/business/law/article3320564.ece

But in defence of journalists, maybe they do not use IP terms correctly because the IP community has never taken the time or expended the effort to educate them otherwise. If you work to a same day deadline and are not a specialist you need all the help you can get. And my experience is that far too often the IP community is not that concerned about providing that help. This ranges from the comparatively trivial (about what terms to use, why and when), to the potentially very important, such as whether there really are "patents on life".

It takes two to tango. Has the Freehills correspondent written to the journalist in question and/or his editor explaining why the story is wrong? If not, why not?

Anonymous said...

Try this link instead to access the trade mark database:

http://pericles.ipaustralia.gov.au/atmoss/falcon.application_start

Birgit said...

Try this link instead. Then click on "Enter as a Guest"

http://pericles.ipaustralia.gov.au/atmoss/falcon.application_start

Filemot said...

A supreme example of "Kitty Litter". It all the more disappointing when you get past the special skills required notice on the IP Australia website to find that it's just an application for an ordinary figurative mark. I was expecting some wonderful example of the expansionist trend of trademarks into the protection of gestures. All I can say is that Lleyton must have one 'l of a PR agent

Anonymous said...

To Joff Wild:

After the Kat's last similar rant - http://ipkitten.blogspot.com/2008/01/announcements.html - where the European Trademark Registry repotedly invalidated a patent for a Community registered design, I did write to the person responsible pointing out their errors, the most galling of which was saying that a Community Design was the European equivalent of a patent.

I received a reply saying that I was just splitting hairs - which showed how truly ignorant of the errors they were perpetrating they really were.

The general media simply is not interested in getting their facts right and you see it in all aspects of reporting, not just IP. The recent bruhaha over Dr Williams Sharia comments is a perfect example of blatant misreporting of what the man actually said and meant. Whatever your views on what he said might be, the attacks against him have been almost entirely founded on ignorance.

The media also isn't interested in stories about IP unless they're controversial. I wrote a piece highlighting the differences between EP and US practice when Sony got sued for millions in the US on the back of a patent which the EP said was obvious. Was anyone interested? Not on your life. I haven't seen a single mainstream media source cover the Astron Clinica judgement - run a search on the BBC or any newspaper website and you'll find nothing. I was at a talk given by the marketing head of Astron Clinica last year and she too commented on how the press just isn't normally interested in covering IP.

Instead, coverage is given to nutters like Stallman who say idiotic things like "Intellectual Property is a proagandist term" and suggest that the media's inability to distinguish a patent from a trademark is all part of a lawyer conspiracy to confuse the issues and benefit from that confusion. http://www.gnu.org/philosophy/not-ipr.xhtml. Fortuantely, I haven't actually seen that conspiracy story in the mainstream press, although it's pretty prominent on Wikipedia, but his various rants did achieve a high profile at the height of the EU CII Directive debate.

This is why blogs like this have to exist, because no mainstream publication would even dream of carrying 1% of the stories that are reported here and, if they did, they'd end up so full of errors or so loaded to promote the controversy of the day as to mislead rather than inform.

Gerontius

Anonymous said...

Joff

Voluntary services such as ringing editors have to be welcome. There is no sign of this.

I once provided a journalist with lots of background for a piece, which I offered to review quickly for such idiocies; he said thank you and never sent me the final piece.

US papers employ fact checkers to make sure this kind of thing does not happen but I understand that they are non-existent, for exmaple, in the UK. One can only conclude that their reports in mainstream publications on all other subjects are just as careless as the ones on IP.

Furthermore what is the point of trying to correct things when the point of most such pieces is to allege pomposity or heavy handedness on the part of the rights owener. The more vague the identification of the rights being asserted the easier that is to do. Even if the IP lawyer got a correction published they would only appear nerdy and pedantic.

So I reckon that mainstream journalists have an interest in keeping the public ignorant on IP; if the public understood IP better the silly sensationalist story would not be successful. It's the same as European regulation with its straight banana stories.

It is the journalist's job to inform the public not lawyers. Is there no embarassment for journalists in writing nonsense?

If you want some material on whether you should patent life, or the like, try asking for some. Many primers for clients on various such important topics do exist but they take months if not years to write; so don't expect a new one today. Better still offer to pay for one!

Matt Buchanan said...

We've ranted a bit on the patent-related nonsense in the popular press. Here's one you might enjoy.

You'll also be interested in the recent Ex Parte Lundgren decision of the USPTO Board of Patent Appeals and Interferences. The case deals with patentable subject matter, and one of the opinions touches on the idea of "patented sports moves" and other human-performed actions.

One of several money quotes:

"However, I do not consider a process that is performed with
human physical actions, or a combination of mental and physical
actions, where the physical actions do not transform physical
subject matter to a different state of thing, to be statutory
subject matter within the "useful arts" ("technological arts") of
§ 101. Perhaps a part of the concern with some human-performed
methods is that the steps may not be guaranteed to produce the
results or be repeatable, whereas machine-implemented process
steps will reliably produce the expected result; however, this
seems to be more of an enablement issue. Examples of human-
performed steps are dance and sports moves; e.g., a high jumping
or swimming technique, which may require both mental thoughts and
physical acts. Arguably any human activity (muscle contraction),
neural activity (thoughts, emotions), or endocrine activity
(secretion of adrenal glands) involves chemical and physical
changes that can be measured and (in theory) controlled or
influenced. However, I submit that chemical, electrical, or
mechanical transformations taking place by or within a human
being are not the type of transformation indicating a process
within the "useful arts" of § 101. While people sometimes refer
to a "patented move" in sports, the USPTO has so far tried to
resist patenting such human-performed subject matter. Surgical
methods are performed by humans, but they involve the application
of scientific medical knowledge to transform human and animal
tissue; they are classifiable as a type of manufacturing process."

You can view/download a .pdf of the decision here.

Joff Wild, IAM magazine said...

Gerontius and Anonymous - if you give up on the press then you are basically resigning yourselves to inaccurate reporting forever. It may not matter too much that people confuse patents with trademarks, but it becomes much more important when you are looking at bigger issues such as so-called patents on life. Are you happy for the anti-patent camp to make all the running, just as they did with the CII Directive?

I do not know enough to comment on the detail of your experiences with journalists, but my experience as a journalist dealing with people in IP is that too often they are reluctant to comment on issues or, when they do comment, they speak in inaccesible language that no-one outside of IP will understand. When you have 500 words to write in an hour that is a very big problem.

The fact is that IP now receives more mainstream media coverage than ever before. That is not going to change. The choice is either to sit on the sidelines and complain about how bad it is, or try to put things right. My contention is that the IP community is better off seeking to engage with the media as that is the only hope it has of being heard. There will be knock-backs and disappointments, things will still go wrong, but in the end the truth will out.

I am not saying that dealing with journalists is easy or that they are paragons of virtue. But they are your route into public perception, opinion formation and, in the end, policy influence. There are 100 things they can write about every single day, so you have to work out reasons for them to write about IP and then give them all the help they need to do it. Not once, not twice, but all the time. That's the only way you are going to change journalistic ignorance.

Craig Smith said...

Dear Joff,
In submitting this story to the IPKat I wasn't intending to criticise the journalist (I also figured it was extremely unlikely the post would come to her attention). I was just trying to share a story that would probably amuse some in the IP world (working in patents, trade marks and patents into the one article made me smile anyway), as well as being of some interest because of Lleyton Hewitt's approach in seeking this protection.
I agree that to a layperson the concepts are confusing, but I also agree with the comment above that reporting the facts accurately would have undermined this journalist's attempts to generate reader interest in the story that she was reporting. She writes interesting stories, but does not normally write on IP related topics and I doubt she would be interested in receiving anything from me picking her up on her IP references. There is a lot of basic information that is readily accessible to anyone who wants to develop an understanding of these concepts.
Kind regards,
Craig

Anonymous said...

Not one to stir further, but Hewitt wasn't even the originator of the sign or even its trademarking. See http://www.news.com.au/couriermail/story/0,20797,22964406-10389,00.html?from=public_rss where, sadly, the previous holder of the trademark (but in what country/ies, you dolt!) also thinks that "...Mats and I had the patent". All together now - "Oh no you didn't"

Jim Davis said...

Double LL is a single letter in welsh – but I do not know if Lleyton is of welsh descent and I rather hope he isn’t!

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