From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Monday, 27 October 2014

Never too late: if you missed the IPKat last week ...

Here's the seventeenth successive and, we believe, successful round-up of last week's substantive blog posts for the benefit of readers who missed last week's activity.  The compiler, as ever, is the suave and sophisticated Alberto Bellan, to whom we are all indebted.  We don't usually include compilation posts such as Monday Miscellanies and Wednesday Whimsies -- but we broke the rule this week to draw the attention of readers to a charitable cause to which they may well wish to contribute.  Here's this week's list:

The IPKat’s friends at C5 have put together a big conference on Trade Mark Litigation, on 29 and 30 January 2015 at the Royal Windsor Hotel, Brussels.  As Jeremy explains, the event will focus on negotiation and coexistence agreements and will feature some notable Katfriends including John Noble (Director of the British Brands Group), recent guest Kat Darren Meale (Simmons & Simmons), Judge Fidelma Macken (Deputy District Judge, and former Judge of the Court of Justice of the European Union and the Irish Supreme Court), Sam Granata (Antwerp Commercial Court judge),  Flip Petillion (Crowell & Moring dispute resolution specialist; arbitrator and WIPO panellist), and Judge Michael Fysh QC. 

* Online enforcement "has a colour and a name": blocking injunctions - A closer look at the Cartier judgment 


Last Friday the IPKat broke the news of Arnold J’s judgment in Cartier and Others v BskyB and Others, a case concerning the possibility of requiring internet service providers (ISPs) to block, or at least impede, access by their subscribers to websites that advertise and sell counterfeit goods. In this post, Eleonora gives a detailed analysis of this Arnoldian decision, which consists of a thorough assessment of the effectiveness of blocking injunctions, the conditions under which they may be granted, plus a comprehensive overview of the jurisprudence of the Court of Justice of the European Union (‘CJEU’) in both (online) copyright and trade mark cases. It is a must-read post on a must-cite case for all who deal with online infringement in the UK and EU.

 

* Obviousness, common general knowledge and expectations of success: Leo gets a mauling 


Jeremy hosts this post by Suleman Ali (Holly IP) on Teva UK Limited & Teva Pharmaceuticals Limited v Leo Pharma A/S & Leo Laboratories Limited [2014] EWHC 3096 (Pat), a decision by Mr Justice Birss in the Patents Court, England and Wales which addresses two patent law cornerstones: obviousness and common general knowledge. This case is about treatment of psoriasis with a combination medicinal formulation already known to that end and a particular solvent. The invention lies in the putting together of the two therapeutic substances in the same formulation and the choice of the solvent. Is that combination inventive? Do read Suleman’s post to know!

* Tripp Trapp and the Third Dimension: a study in trade mark registrability 


Here’s the much awaited IPKat comment on  Case C‑205/13 Hauck GmbH & Co. KG v Stokke A/S, Stokke Nederland BV, Peter Opsvik and Peter Opsvik A/S, a decision where the CJEU addressed the trade mark absolute grounds of “substantial value” and “shape which results from the nature of the goods themselves”. The Dutch case that gave rise to this reference concerned the possibility of registering as a trade mark the well-known Stokke’s “Tripp Trapp” children’s chair, which the Dutch Supreme Court considered having a “high degree of originality”. Is the CJEU’s decision as original as that delightful piece of design, wonders Jeremy?

* EPO Relaxes Unity Procedural Rules - how it works in practice 


Darren gives the floor to his colleague and authoritative commentator on the European Patent Convention (‘EPC’) Derk Visser, who explores the practical application of the new version of Rule 164 EPC [on which see the IPKat last year’s report here], which will comes into effect on 1 November. Under the amended provision, applicants may make any amendment that does not extend the subject-matter of the PCT application as filed and continue the prosecution before the EPC with the claims as originally filed in the PCT application, using the claims as amended in the international phase. It sounds relaxing, indeed.

* Patentability: a perpetual problem 


Jeremy reports on Peter Crowley v United Kingdom Intellectual Property Office, an extempore Patent Court, England and Wales, ruling in which Mr Justice Mann addressed the patentability of an invention consisting of a machine supposed to produce a surplus of energy to that which was needed in order to operate it. The hearing officer rejected the application on the ground that the machine contravened the first law of thermodynamics, which states that energy can be neither created nor destroyed. While attempts to obtain perpetual motion are not new to human history [see IPKat posts here and here] one wonders whether effort should be made to better divide fantasy from actual technology.

* Wednesday whimsies 


Some whimsies are less whimsical than others. This is the case for Sebastian’s story, which Jeremy reports last week, calling for our readership’s generosity. Sebastian is a 3 ¾ year old boy who lives with cerebral palsy. He can move only on his tiptoes, but a surgical procedure to be carried out in the spring of 2015 could allow him to walk normally. The operation’s costs amount to £75,000, and Andrew J. Clay (Squire Patton Boggs) had the great idea to do a sponsored bike ride across the north of England on Friday 31 October to raise money for the operation. You can sponsor Andrew’s enterprise, as Jeremy already did, by following this link.

* BGH decision "Yellow dictionary" colour trade mark dispute 


Birgit pens this post about the German Federal Court of Justice’s decision in the "yellow dictionary" trade mark dispute between the German publishing house Langenscheidt and RosettaStone (case reference I ZR 2284/12 “Gelbe Wörterbücher”18 September 2014) [on which see recent IPKat report here]. The case concerns the alleged infringement of a colour trade mark for yellow by a business that distributes language learning software using yellow on product packaging and advertisements. Do read Birgit’s post to see how it went – and why!

* Artjunkie snatched from the jaws of villainy, but no happy ending 


Alison J. Hendrick v Tony Knight (O-323-14) is a decision of Appointed Person Geoffrey Hobbs QC, involving the sadly-known Tony Knight. Tony is what Jeremy calls “a serial trade mark scoundrel” who has gone to some lengths to undermine IP rights belonging to Dame Vivienne Westwood OBE [see the IPKat’s posts herehere, and here]. This time his victim of choice was Scottish designer Alison Hendrick, whose applications constituted of a skull device mark and the word mark ARTJUNKIE found Knight and another of his bad-faith trade marks on its way to the Trade Mark Register. How could the system defend itself and fair market actors against trade mark trolls, wonders Jeremy? Are the anti-trade mark filing injunctions [on which see the IPKat note here] an option to defeat naughty Knights and bring (relative) peace into the trade mark system?

* Arnold J orders biggest website blocking to date 


Following last week's judgment in Cartier v BSkyB [see here], Eleonora addresses another Arnoldian blocking injunction decision ([2014] EWHC 3444 (Ch) -- naming all the parties would occupy half of this Never Too Late edition). The claimants were record companies claiming on their own behalf and in a representative capacity on behalf of the members of BPI (British Recorded Music Industry) and PPL (Phonographic Performance Ltd). The defendants were major UK ISPs that have a market share of some 95% of UK broadband users. The 21 websites in subject of this order make it something - how to say - gigantic.

 

Marie-Andrée returns on the topic of copyright protection of shoes, this time reporting on a French Supreme Court’s decision in a proceedings having as parties the Italian luxury company Tod’s and a French company that imported alleged infringing flip-flops to France from Italy. Beyond classical copyright issues, this decision addresses two challenging standpoints, directly connected to the existence of several and diverging copyright systems in the EU. The first is whether Article 17 of Directive 98/71, which such different regimes allow, violates Article 6 of the European Convention on Human Rights, which safeguards the right to a fair trial. The second is whether diverging legal frameworks between Member States hamper the principle of free movement of goods. Not really looking for flexibilities. 

* Amazon.com: in the beginning, there was Mudie ... 


Amazon.com is not the first entity to enjoy a leading position in book distribution and pricing in the publishing sector. In 19th century England, a company named Mudie influenced the business of publishing and the act of reading no less than the American giant, by implementing a then-revolutionary business model. Market power in the book industry is most powerfully exercised at the distribution level, Neil observes, so what’s new under the sun?

 * News from the EPO - Strike Ballot comes out in favour of a strike 


Merpel has been sunning herself again in the corridors of the EPO. From her favoured vantage point, she reports of another call for a ballot for a strike, the results of which are duly reported in this post.


Eleonora reports on the CJEU have issued its decision in BestWater [Case C-348/13, here], a long-awaited ruling where the Court gave guidance on whether video framing is an infringement of the right of communication to the public within Article 3(1) of the InfoSoc Directve. The date of the decision was not scheduled on the CJEU’s calendar -- and this little mystery reminds that there is always something to learn about the CJEU’s rules of procedure.

* Happy to Deliver To You This Trade Mark Infringement in Pizza Flavor Case 


Here’s a tasty decision coming from the Southern District of Texas. The case is New York Pizzeria, Inc. v.Syal et al, 3:13-cv-00335, where a restaurant franchisor brought proceedings against a former employee who, along with a competitor, allegedly stole its recipes. Among other things, the plaintiff claimed trade mark infringement of its best dishes’ “distinctive flavors”, as well as trade dress infringement for copying its “distinctive plating methods”. Can a particular way to present food on a plate be a trade dress? And, most significantly of all, can a flavour constitute a trade mark? Do take a look at Marie Andrée’s post to find out!
* "Put up your Dukes!" A spot of sparring in the States
In this guest post from Katfriend Shalini Bengani, we are treated to a curious battle between the estate of the legendary American actor John Wayne and a hitherto not-very-pugilistic academic institution over the right to control commercial exploitation of the word "Duke".  Could these two parties really not have sorted this out without the need to go to court? Read this post and draw your own conclusion.

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