Monday, 2 April 2012
Around the weblogs. Offshore again, Afro-IP's intrepid web-traveller Kingsley Egbuonu reaches the distant shores of the Seychelles, only to find that the archipelago Republic's aspirations have not yet been matched by action in terms of active websites for its IP offices. Two lots of congratulations are due: the SPC Blog, which exists on a frugal diet of news and comment concerning patent term extension, now has an unbelievable 1,400 subscribers; still some way off, despite its far greater potential readership, is the IP Finance blog, which is now celebrating subscriber number 1,100. Finally, Ben Challis (1709 Blog, here) writes on the recently-reported success of France's Hadopi law and the fact that a 50% decrease in file-sharing has not led to a noticeable increase in CD sales.
Rhys's piece. Anyone attending the first plenary session at the Fordham International Intellectual Property Conference in New York last spring will probably remember this Kat holding forth, at some length and with great force, about the wrongheaded and commercially meaningless manner in which two of Europe's great legal institutions, the Court of Justice and the Office for Harmonisation in the Internal Market (OHIM) sought to apply the test of confusing similarity between competing marks by seeking to remove that issue from the real-world domain of fact and embedding it firmly in the domain of law. In this Kat's view, confusing similarity exists where two marks are factually similar and that, as a result, consumers of relevant goods or services are confused. It makes nonsense to seek to construct an abstract legal formula into which competing marks are processed by a legal form of words that can result on manifestly non-confusing marks being held likely to confuse, or vice versa.
For this reason, this Kat can thoroughly commend an article that is already available to online subscribers to the Journal of Intellectual Property Law & Practice (JIPLP) and which will, in the not-too-distant future, be available in the printed version too. It's "Ensuring greater legal certainty in OHIM decision-taking by abandoning legal formalism". The author, Rhys Morgan, looks at the fault-lines in Community trade mark legal reasoning in general terms, then goes right to the heart of the subject by illustrating his points with passages of text drawn from actual decisions and which constitute a damning condemnation of the legal approach and its results. Attentive readers will also find a number of references to Alice, of Wonderland fame. You can read the abstract of Rhys's piece here. -- and if you are going to read just one article on Community trade mark law this year, make it this one.
here for last week's Friday Fantasies and scroll down to the picture of an aardvark, you can find details of how to do so.
BL O/124/12, 20 March 2012. This case concerned an application to patent a "dual purpose emergency evacuation chair with caterpillar tracks which can lift a wheelchair and its occupant and safely transport them downstairs, or alternatively is equipped with a seat arrangement for transporting a person alone downstairs". What happened was that William Ford, one of the directors of Threeway, left to set up another company and publicly the invention to various good souls -- including Staffordsshire County Council -- before the filing date of Threeways' patent application. Did Ford's disclosures count against the application as prior art? No, said the Hearing Officer, because the disclosures were made in breach of an obligation of confidentiality, notwithstanding the absence of any specific non-disclosure agreement. There was, in effect, an equitable duty not to disclose the information when Ford knew that any pre-filing disclosure would scupper patent protection. The fact that Ford thought an application had already been filed made no difference: he should have checked first, before making any disclosure.