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.

Wednesday, 19 January 2011

Wednesday whimsies

Please spare a thought for the family and friends of Johan Nortje, a senior South African customs investigator who, having enjoyed considerable success in the fight against the tidal wave of counterfeits, has been murdered amid fears that the gangs who smuggle unlawful goods into the country are targeting enforcement officers -- or at least the ones who are (i) effective and (ii) don't accept bribes. Next time anyone starts telling you that IP infringement is just an economic crime and doesn't really hurt anyone, you can remind them that the name of Johan Nortje has been added to the list of human fatalities, along with those unnamed souls who are poisoned by fake medications or malnourished through worthless infant formula or maimed through accidents resulting from the malfunction of counterfeit mechanical parts.  For further comment and links, see Afro-IP here.


The future for Africa? Trained penguins on border
patrol monitor likely importations of fake goods
Never mind infringement in Africa, bring on the Flaming Penguins!  While on the subject of Africa, followers of the IPKat on Twitter may have noted his caustic comments, following the observation of Aurelia Schultz that the Africa Session has been dropped from the program of the International Trademark Association (INTA) annual meeting.  The Kat pointed out that there remains one solitary, miserable allusion to Africa.on the coming program: at the Grand Finale, held, at the California Academy of Sciences, participants will be able to enjoy the antics of a colony of African penguins [recipe for Flaming Penguin Kabob here].  Sadly these are not  Afro-IP lead blogger Darren Olivier has issued this rallying call to anyone prepared to help get some sort of Africa meeting together.  Please help if you can!

[Not a rant against INTA but an offer!] Oh, and here's a message for INTA: the Kat knows that you are a large organisation with a thousand and one things to do and that it's impossible to please everyone; he also knows how difficult it can be to put together a cogent programme for an event like this, with good speakers and attractive topic -- but just know this: the blogging community is here to help you.  Afro-IP, the IPKat and many other blogs are written by INTA members and people who support and publicise your programmes.  We don't want to take over your show; that's your job and you are answerable to your members' interests.  But we can help you do yours, by spreading the word, by making suggestions and by helping you fill in your gaps.  Just let us know how we can help for the future and we will.


Service without a smile?
Or no service at all ...
WIPO and THAT website.  While the world waits with bated breath for the abatement of the dreaded wipd.biz site, a sudden thought has struck the IPKat.  Several legitimate organisations in the IP family, including some valuable services like the UK's Intellectual Property Office, have seen their websites rendered totally inoperable by distributed denial of service attacks (see here for explanation; click here and scroll down to "Mother of Parliaments, home of talking furniture" for more on the attack on the IPO). However, no-one ever seems to attack the bad guys and blot their websites out -- not that this is something that a body such as WIPO could ever contemplate.

This left the Kat wondering this: (i) in what circumstances, if any, is it lawful to "take out" a website which is itself unlawful and where there is no countervailing free speech issue?  (ii) In the event that a denial of service attack is held to be unlawful, what remedies and/or quantum of damages might the victim WIPD be able to secure, particularly regarding the fact that its means of doing business is itself unlawful?  Do tell!


TM protection in paradise: Pitcairn Island
Brandstrike’s Guide to Trademark Registration in European Dependent Territories, which the IPKat warned you to expect soon three months ago, is now available: you can read it here.  It took longer to prepare than had been predicted. Merpel assumed that this was because of the need to visit the European Dependent Territories themselves, and she was ready to offer her services in inspecting the provision made for trade marks in such delectable destinations as Bonaire, Saba and Sint Eustatius, the Pitcairn, Henderson, Ducie and Oeno Islands, Martinique and Guadaloupe. However, as Damian Croker explains:
"The most time-consuming issue was trying to get to the bottom of trade mark registration in the Sovereign Base Areas (SBAs) in Cyprus [the IPKat posted on this problem here, in "Akritiri and Dhekalia: IP Curiosities"]. The SBAs issued an ordinance (Delegation of Functions to the Republic Ordinance) stating that the Republic of Cyprus are responsible for taking care of trade mark registrations for the SBAs. Unfortunately, nobody in the SBAs seems to have discussed this with the Republic of Cyprus Intellectual Property Office. The Cyprus IPO does not accept that it is responsible and only knew about the ordinance when I sent it to them!

After a very frustrating period with both sides unwilling to engage in trying to resolve this impasse the Cyprus IPO informed me that they were going to send the matter to the Attorney General for an opinion. Hopefully this matter will be resolved for the next edition in six months time. It would be an excellent coup for the guide if it was instrumental in a new trade mark procedure being put in place but I am not holding my breath. The UK IPO has asked to be kept informed".
Damian welcomes all comments, which will help him prepare the next edition.  You can email him here.


There are just two more days to vote before the polls closes on what should be the standard term used for abbreviating the name of the senior court within the Court of Justice of the European Union.  "ECJ" is well ahead of "CJEU" at present, with the other two options lagging far behind.  The number of votes cast is fairly low, which means that a rush of late voters can easily affect the current trend and indeed reverse it.  The Background to the poll is that several contributors to the Journal of Intellectual Property Law and Practice (JIPLP) have expressed their personal reservations about retaining "ECJ" and, in recent months, more than half have opted not to do so.  IPKat team member Jeremy would be delighted to hear from editors of other English-language IP publications as to whether they have had similar experiences and as to what their own feelings are.  Anyway, for a full explanation of the issues, click here.  To vote, visit the side bar here.


The Princess and the Personal Name: more comments.  Within the past month the IPKat posted some fairly robust thoughts on a Court of Justice of the European Union ruling on a person's entitlement to be registered under a name which, though lawful in some EU countries, might be unlawful in others -- including the country of her citizenship (see post here and further comment here). Some further comments have been sent in, for which the Kat is grateful.  The first is from his old friend and linguistic scholar George R F Souter (Lammi & Partners), who observes:
Katarina, Princess of Finland 1581-3
"You asked for some thoughts on “choice of name and its interface with (i) regular IP and (ii) rights of privacy/publicity”. In Finland, the choice of a name is subject to the Names Act (Nimilaki), administered by the Population Register Centre (Väestörekisterikeskus), which operates under the Ministry of Finance. Essentially, everyone must have a surname and at least one forename (the maximum being three). For the Finnish-born, there are some restrictions as to what names are acceptable. For foreigners who become Finnish citizens and wish to change their originally registered names in their countries of origin, the names chosen must, in principal, be “assimilable” in Finland. Every resident in Finland is recorded on the Population Register. 
There are IP consequences attached to a name. Section 3 of the Trade Marks Act provides, inter alia, that “The name … of another may not be included in a trade mark”. In connection with an application for a Finnish national trade mark registration, or a Madrid Protocol extension to Finland, the Finnish Surname Register (a subset of the Population Register) is searched along with the Trade Marks Register, and the Trade Register (which contains the names of all trading entities in the country), and a conflicting surname can act as an absolute bar to registration or protection.. 
The protection given to surnames by the current interpretation of section 3 of the Trade Marks Act is extremely wide, covering all classes, without the need for the owner of a name deemed conflicting to demonstrate any commercial interest in trading in the goods or services involved. The right of privacy in a name is protected by the Population Register Centre. 
I believe that I am the only person currently residing in Finland with the surname Souter. A search of the Finnish Surname Register gave the answer that the number of people resident in Finland with the surname Souter is “less than five”, together with the legend. “For reasons of protection of privacy, the service will not show the exact number of holders of certain surnames if they are uncommon”.
Thanks, George, for this really helpful information.  Gratitude is also due to another old Kat-friend, Howard Johnson (Part-time Senior Teaching Fellow Durham University), who adds
"I agree with the anonymous contributor - again (while personally being a monarchist and a lover of titles, though not possessing one of my own) I think it is important to demarcate carefully between family and personal name issues and commercial mark exploitation.  As ever this seems to be jurisdictional creep on the part of the ECJ.  I would disagree that the EU is merely a commercial union it long ceased to be that in any real sense of the term. Hhowever on this issue I think that I would apply subsidiarity and leave it to the relevant laws of Austria and Germany, supplemented no doubt by appropriate conflict laws rules, to decide this issue. Whether the lady is entitled to be regarded as real princess, and what order of nobility and creation it is of, one thinks of Proust and arguments about Pre-revolution legitimist, Napoleonic and post 1830- titles in France - it will afford much innocent amusement to some at least".

13 comments:

Tophat said...

Jeremy, is that a veiled cry for IP professionals to launch a DOS attack on WIPD...?!

Anonymous said...

Worrying, very worrying. One may as well ask under what circumstances a shop-owner can slash the tyres of a street trader selling counterfeit goods, or a celebrity can set fire to bundles of newspapers running libellous stories. DDOS attacks cost real money to those they hit, and there's often collateral damage to their hosting providers, their telecoms companies, and others who use the same services. There's a reason people shouldn't take the law into their own hands - it's called anarchy. That and the fact we'd all be out of a job...

Jeremy said...

The IPKat would never condone an unlawful act, which is why he was pondering on the circumstances in which it might be legitimate. Self-help remedies are not unknown in IP. Section 100 of the Copyright, Designs and Patents Act 1988 springs instantly to mind ...

Tim Jackson said...

I believe that (in the UK at least) a DDOS attack is a criminal offence under the Computer Misuse Act (section 3, as amended). So I can't see any circumstances in which it might be legitimate, even against a website that is itself not legitimate.

If I burgle the house of a known burglar, it isn't a defence to say that he was a bad guy anyway, and was using the house to store the proceeds of his crimes.

Jeremy said...

Tim: while the Computer Misuse Act is pretty powerful and its provisions are mirrored in a number of other jurisdictions, I think I'm right in saying that not every country does -- which would still give some scope for such a course of action. I've not done a thorough search, but I think it's possible that the Czech Republic may be among them.

Merpel has just asked: "If you and I can't do it, what might be the position might be regarding diplomatic immunity from criminal prosecution in the case of activites committed by sovereign states and UN agencies?"

Anonymous said...

Is Merpel insighting insurrection?

Anonymous said...

Well, direct destructive action by a state against citizens or enterprises in that state has generally been regarded as an act of war, espionage, sabotage or state-sponsored terrorism. Stuxnet comes to mind.

Not really sure that it's quite the thing that decent chaps should be doing to other chaps, even when the other chaps aren't behaving like decent chaps....

Of course, in the old days it was easy; we'd just send in a gunboat...

Forger v.Counter-feit said...

On THESE websites:
If you have patience, have a look at another Registrar at
http://www.iusauthor.com/en/Copyriths.html
claiming it's both collecting society (NGO) and law firm! This time it makes registrations & certifies works. Despite the assertions, such private documents cannot ‘individualize the author, his work and copyright’. Such certificate is inadmissible as court evidence subject to the local procedures. I believe there is not any national law providing for acceptable evidence the one, fabricated by the legal counsellor.

"Copyriths [!]
The organization for collective management of copyright “IUSAUTHOR” Plovdiv offers you to protect legally your rights as an author. The type of service that “IUSAUTHOR” offers are divided into the next few stages:
First step – making your work part of our legal copyright database (electronic or paper bearer). Our purpose is to save your works, to report about them or to exchange information among the organization and other cultural or similar organizations, the authorities and eventual users.
Second step – issue of Certificates of Authenticity which could be in fact used as legal evidence individualizing the author, his work and the copyright.
Third step – legal protection of the author in court in case of infringements of his copyrights.

The organization for collective management of copyright “IUSAUTHOR” – Plovdiv can help you with:
1. Copyright registration of literature works
2. Copyright registration of art works
3. Copyright registration graphical design
4. Copyright registration musical compositions
5. Copyright registration of computer programs and database
6. Copyright registration of architectural projects
7. Copyright registration of scene art
8. Copyright registration of photographer’s art
9. Copyright registration movies and other audiovisual arts
10. Copyright registration of graphical arrangement of printed publication
11. Making of copyright contracts
12. Other copyright consultations
13. Registration of the works and giving over certificates for copyright authority.

“IUSAUTHOR” offers legal protection to all authors whose works are registered in the database of our law office.
“IUSAUTHOR” offers also court defense focused on intellectual property which includes not only representation in the court but also executing the border measures, administrativ [!] and penalty [!] measures, prescribed in certain laws dealing with the intellectual property."

INTA said...

The Africa Session will be back in the 2012 Annual Meeting Program.

Per your offer, we are VERY interested in hearing your thoughts on how to improve on the program, as well as attract more attendees. Here's our email address: Meetings@inta.org

Jeremy said...

@INTA
Thanks so much for your comment, hugely appreciated! I'll be replying at length by email but wanted to take this opportunity to express my gratitude for your swift and positive response.

Jakub said...

I am not a criminal lawyer, but I believe that the DOS/DDOS attack might be a criminal offence in the Czech Republic as well, under section 230 of the Czech Criminal Code (Unauthorised Access to a Computer System or a Data Carrier). However the wording of this provision is not covering DDOS attacks as clearly as section 3 of the UK Computer Misuse Act and there is no applicable caselaw either. Potential WIPO avenger might therefore have at least a chance to avoid criminal conviction.

Anonymous said...

This web site really looks like a small-time operation, and its owner shares its server with many other users. This is no Patent Office, or Lufthansa, or some other large entity that could afford its own access.

HTTP 1.1 permits the hosting of a multiplicity of web sites under a single IP address, a DDOS attack would therefore also affect other innocent parties hosted on the same machine.

Another way might be to approach the web host "savvy.cz", but this would probably result in the scammers running away to some offshore location.

The web site proposes no online means of payment, I gather that all transactions are paper based. If it had been possible, making a number of "registrations" using bogus credit card details might do the trick, as it would possibly get the attention of the scammer's bank. Should the scammer be daft enough to make a claim, he would end up revealing his identity in he process. (There are a couple of fellows on this planet who get their kicks by feeding 419-scammers with fake details and publishing the nonsensical e-mail exchanges. Similar idea.)

The scam probably occurs soon after the day when the application is published with the applicant's and representative details. WIPO could make a direct mailing just before the A1 or A2 publication warning against such scams, but it would probably cost a lot more than what these small time crooks take in, and might cause problems of its own - I can imagine the reaction of inventors to the EPO's legitimate reminder for entering the regional phase, which mentions the payment of fees.

The RO could also mail such a warning in the applicant's language together with the filing receipt. Since PCT applications are most often a second filing made at the end of the Paris year, and the RO's confirmation is issued something like a month after filing, the warning would arrive roughly six months before the scammers become active.

The scam for fake services has been around for a very long time, and not only in the patent sector. Decades ago I opened something that looked like a bill with a letterhead resembling the Grüner+Jahr logo for having our telex number listed in some sort of "directory". My father told me at once to throw the letter away, and explained what it was. The lesson was not forgotten.

Anonymous said...

Moreover, DDOSing the web site won't hurt the scammer, and will deprive the scammed of the "service" they've paid for...

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