The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Pavis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Monday, 24 July 2017

Event Report: The European Intellectual Property Teacher's Network 10th Anniversary Conference


The European Intellectual Property Teachers Network (EIPTN) brings together IP enthusiasts from across Europe to exchange ideas on best practice and innovation in teaching and learning activities relating to intellectual property. As long term readers of the IPKat Blog will no doubt remember, Blogmeister Emeritus Jeremy Phillips was a huge supporter of IP Education, and that was in fact the initial purpose of setting up this blog in 2003. THE EIPTN has been hosting discussion on best practices, new ideas and innovations in IP teaching for over 10 years [Kat post on the very first annual conference here!]

The 10th Anniversary EIPTN Conference (sponsored by the European Union Intellectual Property Office and the European Patent Office) took place at the University of Lund in Sweden at the end of June. Dr Jane Denoncourt (Chair EIPTN, Conference Convenor and Senior Lecturer at Nottingham Law School) reports on the event:

“Our annual two-day conference was hosted in Sweden by the vibrant Lund University. A very exciting year for the EIPTN as our host institution ranks 73rd in QS World University Rankings. The international EIPTN IP pedagogy conference attracted delegates from 20 countries. We kicked off with a Welcome event held at the elegant Faculty of Law in the centre of the ancient university town of Lund and were cordially received with glasses of bubbly and Swedish themed fare by Jur. Dr. UlrikaWennersten, a newly appointed EIPTN Committee member.

The EIPTN 10th anniversary gathering was a great opportunity to reflect on the past and future of IP education. IP educators generously shared their innovative work and we learned from some of the best IP education thought leaders in Europe. 
Alison Firth looking at the publications authored by EIPTN members

On Day 1 Kristina Eneroth (Associate Professor, Vice Dean of the triple crown School of Economics University of Lund) expressed her view that “brilliant research is no excuse for poor teaching”. An inspirational key note address by Marianne Levin, LL.D., PhD, honoris causa, Professor of Private Law Stockholm University ensured.  Marianne gave us her delightful ‘Memoirs of IP Law” which included a visually captivating presentation depicting how IP law has evolved from being ‘a little island to a big ocean’. Legal Advisor Louise Petrelius of the Swedish Ministry of Justice provided an encouraging update as to her involvement in the Unitary Patent and the Unified Patent Court that will rock the IP world.

In Session 1, we considered new approaches to IP education with presentations by Dr Sabine Jacques (University of East Anglia) who shared an amazing IP quiz game she developed to make learning IP fun. Thorsten Lauterbach (Robert Gordon University) spoke on flipping IP learning and the technology involved in making it work; Joe Sekhon (University of Portsmouth) explained how social media helps him to educate student entrepreneurs about IP. 

In Session 2, we applied ancient wisdom and modern thinking to IP education.  This provided a platform for Professor Laurent Manderieux and Jur. Dr.Gabriele Gagliani (Bocconi University) to communicate their use of the tried and true socratic method. The modern theme of diversity in access to IP education was shared by Caroline Coles (De Montfort University). Pavel Koukal,JUDr. (Masaryk University) entertained with a high profile Czech parody case and the use of Moot Courts to teach IP enforcement. 

Those relatively new to academia who have a role in keeping the teaching methods fresh, presented next. A lively introduction to IP Ethics and the ‘The Trolley Problem’ by Lauren Traczykowski(University of Birmingham) put a new twist on IP education. A series of music copyright awareness events designed by Haris Hasic (University of Travnik) which attracted high profile musicians followed. Hayleigh Bosher (University of the Arts London and IPKat) delivered an upbeat TED style talk on how she has succeeded in ‘Engaging Creative Students in IP Law Education’. Diane Nickl (EUIPO Academy) demonstrated the EUIPO Learning Platform and IP Content which is freely available online to IP educators. The EPO’s initiatives to promote IP in universities including research funding opportunities and study visits was the subject of Giovanni Arca’s presentation to the international group of IP educators and researchers. Day 1 ended after a walking tour of the stunning University campus and Swedish hospitality continued with a Gala Annual Dinner at the FinnInn Restaurant with Swedish folklore about the giant Finn.  
Conference attendees admiring the beautiful Lund

Day 2 began with talks on the theme of the ‘Future of IP Education’. The Chair of the UK IP Awareness Network, Professor Emirita Ruth Soetendorp discussed the impact of the UK Higher Education institutions IP policies on students.  Peter van Donger of the Netherlands PatentOffice shared the current trends in teaching IP. Dr Janice Denoncourt confirmed that £133 billion is the current estimate of the value of intangibles to the UK economy and that economic dependency on IP rights warrants the formal inclusion of IP law in the requirements for qualifying law degrees. The final session involved Nordic approaches to IP teaching led by Bente Fjeldberg, the Training and Development Manager of the Norwegian Patent Office.  Bente show cased their provocative TV programme ‘Patenting vs Research?’ made for the Norwegian Knowledge Channel that aired in October 2016.  A second TV programme is planned for Autumn 2017 which we are all keen to see.  The final session was a joint act with Ulrika Wennersten and her colleague Jur. Dr. Associate Professor Ulf Maunsbach (Lund University) who co-teach their innovative IP law case management module which involves Swedish lawyers mentoring IP students to conduct real IP cases in Swedish courts.

Two perfect days to perfect IP teaching and learning. Stay tuned for the announcement of the Harts Publishing Best Presentation Prize. Conference papers will be published in the Nottingham Law Journal and the Prometheus Critical Studies in Innovation journal with a Best Paper Prize sponsored by Routledge. 

We are extremely proud of our accomplishments in IP teaching in the EU and look forward to continuing to be at the forefront of developments in the field of IP education. Over the last decade, bringing together IP teachers in one place, has made us all aware of the strength of the network. To many of us, even those active in EIPTN for some years, the scale and reach of those achievements is a surprise.”

This is an annual conference, with the location for next year’s event still to be revealed. Keep up to date at and for further information about EIPTN see www.eiptn.org

Photos: Janice Denoncourt

Sunday, 23 July 2017

French Commercial Tribunal : clarity in paternity is key

The Commercial Tribunal of Lyon recently settled a dispute over the right of paternity in light design creations owned jointly by its authors (TGI de Lyon, Ch. 3 cab 3 C, 16 May 2017, L'Atelier Lumière and M. Nègre. v Les Eclaireurs and M. Goy - here in French language). In the decision, the tribunal reasserts the strength of this moral right by finding for infringement even in cases where the paternity is neither omitted nor incorrect but only "ambiguous".
Light design of 'Berre L'Etang'  by L'Atelier Lumière,
Pierre Nègre and Lucas Goy.

The parties to this case used to work together for the company "L'atelier Lumière" specialized in light design, also founded and managed by the claimant, Pierre Nègre. In 2008, the defendant, Lucas Goy, had left "L'atelier Lumiere" to set up a competing company trading as "Les Eclaireurs".

On his website, Goy shared photographs of six design projects he had contributed to during his time at L'Atelier Lumière. The light creations were presented as part of his design portfolio, together with other designs he had created throughout his career and since the foundation of his company. Whilst the website credited the works to Nègre and "L'Aletier Lumière", some reproductions also bore the name of the competing company.

Cat loving the back-light of this design
by Pottercraft Pictures
The claimant, Nègre, took issue with the fact that the reproductions of these light designs published would lead clients to believe that the competing company co-authored the works, breaching the right of paternity owed to his business (L'Atelier Lumière). He held that the mere reproduction of light design projects on Goy's website, created an unlawful form of "ambiguity" around the paternity of the works, even when the latter were credited correctly.

The claimant asked the Commercial Tribunal to order the take-down of the photographs from Goy's website, together with damages in the amount of 23,600 euros for breaching his company's moral right, 10,000 euros for moral damage ('préjudice moral'), and 247,400 euros for unfair competition and passing off. Nègre also also asked to have the outcome of the judgment published on the main page of the competitor's website as well as in at least three high-profile architecture magazines or newspapers, at the defendant's expense.

'Ambiguous' you say?
The Tribunal concurred that that the mere presence of the works on the company's website, even in the absence of wrongful credits, sufficed to breach of their owners' moral right as they were "ambiguous" about their paternity. The Tribunal thus ordered the take-down of the wrongful credits, and asked for any "ambiguity" with regard to the paternity of the works to be addressed. The decision awarded 10,000 euros in the form of damages for the moral right infringement and denied any publications of the judgment on the competitor's website or in the specialist press. However, the Tribunal rejected the claimant's request to prohibit the defendant, Goy, from referring to the light design works that he had co-created with Nègre on the website of his new company. The panel found the claim disproportionate, as it would prevent the defendant from accounting for his professional experience to clients and potential customers (unambiguously).

This decision evidences that the protection conferred by the moral right of paternity does not wither with collective ownership. It even extends to cases where credits are neither inaccurate nor omitted but merely "ambiguous". This certainly gives "teeth" to an old doctrine of authors' rights in the era of internet where companies' websites and online marketing strategies are ever so critical in attracting clientele.

Saturday, 22 July 2017

In memoriam of Kenneth Jay Lane: "My designs are all original"; "original from someone"


Fakes and imitations have long held a fascination in the world of creation, not always pejoratively. This Kat remembers his notion of what is "genuine" being challenged in 1990 by an iconic exhibition presented by The British Museum, entitled ''Fake? The Art of Deception.'' In reviewing the exhibition at the time, The New York Times made the following observations--
“One lesson of the British Museum exhibition is that fakery is a matter of context. In ancient Egypt and the Orient, copying earlier works was a sign of respect and even piety. In Europe, where authorship was not acknowledged or legally protected until the Renaissance, medieval imitation was in no sense a personal or moral affront. ... But still in Renaissance Italy, a sculptor could legitimately test his skill by trying to pass his work off as ancient; the young Michelangelo excelled in this ''misrepresentation.''

During the Gothic Revival of the 19th century, the ''great age of faking,'' according to the catalogue, copying was an esthetic imperative. The idea was to re-create an antique world filled with artifacts from the past, some of them real, and some [not]….”
Fast forward from that 1990 article in The York Times, this Kat read in the July 21st on-line edition of the newspaper that--
“Kenneth Jay Lane, the designer and bon vivant who built a global business from glittering acts of unabashed deception, producing fake and junk jewelry — or, as he liked to say, tongue in cheek, ‘faque’ and ‘junque’ — has died at his home in Manhattan. He was 85.”
“ I myself am a fabulous fake," Mr. Lane once said of himself.

However he chose to describe himself, this much is for sure: Lane made it “chic” to wear fake jewelry all in support of a life-style that belied his cheap jewelry offerings. Lane came from Detroit, then the epicenter of the automobile industry, seemingly far removed from the design of anything that did not have four wheels. He left Detroit as a teenager in search of a design career in New York, where he is said to have augmented his flat Midwestern accent with a bit of a British-sounding overlay. His first ten years in design focused on footwear, before he moved to jewelry, where he made his fame and fortune.

It is said that many women wore their own jewels together with jewelry designed by Lane, Not infrequently, even experts, were hard-put to distinguish what was what. Indeed, it appears that Coco Chanel had accomplished the same dynamic some years earlier, but her fakes were meant for a more limited, well-heeled market and, unlike Mr. Lane’s, they were not intended for mass distribution.

"My designs are all original,” Lane is reported to have told The New York Times in 2014, that is, “original from someone.” Customers were apparently quite prepared to wear Lane's "original" designs with "genuine" original designs. At his best, Lane’s designs were known as “faux masterpieces.”

Lane’s two worlds, the glamorous elite and the mass market customer, were reflected in his diverse clienteles. At the one end, customers were said to include such personalities as Jacqueline Kennedy Onassis, Audrey Hepburn, Elizabeth Taylor, Greta Garbo, Nancy Reagan, Princess Margaret, Princess Diana, Babe Paley and Diana Vreeland.

On the other hand, Lane made a fortune though his appearances on QVC, an acronym for "Quality Value Convenience", an American cable, satellite and broadcast television network, whose main outlet is a shopping channel. Lane’s genius in reaching this mass audience was at once giving a titillating mini-view into the glamour of 0.1 of the top percent, while also giving tips to viewers how they could wear the merchandise that he flogged, enabling them to conflate, if only for a moment, between what they might wear in Detroit and what Audrey Hepburn might be wearing in Paris.

This interweaving of the glamorous with the mass market can be seen in the following story. As told by The New York Times
“One of Mr. Lane’s best-known designs is a copy of a Van Cleef and Arpels Maharani necklace given to Mrs. Onassis during her marriage to Aristotle Onassis. Mrs. Onassis asked for the copy, and Mr. Lane offered her a choice: pay for the master model (for about $1,000) or allow him to mass market copies. She agreed to the copies. Some time later, in the 1980s, he said, she had been watching television and told him, “I saw our necklace on ‘Dynasty.’”
Circling back to the 1990 exhibition at The British Museum, consider Lane’s life and the industry that he helped spawn. Then, as now, how we view so-called “fakery” remains a matter of context, one tension being between one-of-a-kind and being the focus of adulation via imitation.

What can the possible implications of the CJEU Pirate Bay decision be? A new paper

As this blog reported, on 14 June last the Court of Justice of the European Union (CJEU) issued its much-awaited judgment in Stichting Brein v Ziggo BV and XS4All Internet BV, C-610/15 (the Pirate Bay’ case).

There, the Court developed further its construction of the right of communication to the public within Article 3(1) of the InfoSoc Directive, and clarified under what conditions the operators of an unlicensed online file-sharing platform are liable for copyright infringement.

The CJEU judgment builds upon the earlier Opinion of Advocate General (AG) Szpunar in the same case [reported here], yet goes beyond it. This is notably so with regard to the consideration of the subjective element (knowledge) of the operators of an online platform making available copyright content. Unlike AG Szpunar, the Court did not refer liability only to situations in which the operators of an online platform have acquired actual knowledge of third-party infringements, but also included situations of constructive knowledge (‘could not be unaware’) and, possibly, even more.

Overall, the CJEU decision is not limited to egregious scenarios like the one of The Pirate Bay: the Court’s findings are applicable to different types of online platforms, as well as operators with different degrees of knowledge of infringements committed by users of their services.

In my view the judgment is expected to have substantial implications for future cases (including at the level of individual Member States), and overall prompts a broader reflection on issues such as the interplay between primary and secondary liability for copyright infringement, applicability of the safe harbour regime within the E-Commerce Directive, as well as the current EU copyright reform debate, notably the so called value gap proposal within Article 13 of the draft Directive on Copyright in the Digital Single Market.

Further to a request of the International Federation of the Phonographic Industry (IFPI), I prepared a paper that would explore the possible implications of the judgment. The paper is going to be published as an article in the European Intellectual Property Review later this year. In the meantime, you can find a pre-edited version here.

Friday, 21 July 2017

Never Too Late: If you missed the IPKat Last Week!

Dear IPKat followers, if you could not make time for your small IP doses last week, you don’t have to worry! The 156th edition of Never Too Late is here to give you your weekly dose of IP in one go!

We started the week quite glamorously on the Promenade de la Croisette, where Kat Neil discussed A film is a film is a film: at Cannes, it's not that simple. This year, two Netflix films were competing in the Cannes Festival, but the on-line broadcaster’s presence for next year is not so steady. The philosophical question is: is a film still a film if it never sees the inside of a cinema?

My patent!
Back to court, Kat Mark reports that the BGH grants compulsory license in preliminary proceedings. The Düsseldorf Regional Court awarded pharma company Merck a compulsory licence to produce Isentress, an HIV-treatment drug. The court ruled that Isentress fulfilled the requirement of public interest as prescribed in the German Patent Act.

Continuing on with the chemical formulas, Guest Kat Stephen asked the question: An improved Improver? UK Supreme Court moves towards a UK Doctrine of Equivalents in Lilly pemetrexed battle. The post discusses the reasons for the unanimous conclusions reached in the  Eli Lilly v Actavis UK [2017] UKSC 48 case.

As the news about Google’s paid research was on all the headlines all around the World, Kat Nicola gave her own critical insight on the news on: The Smoking Gun - Is IP research the next tobacco scandal? The answer is: maybe not!

As the concern about health and safety threat caused by counterfeit products, Katfriend Dr Marina Perraki  introduces us to the special world of pesticide products, counterfeits and parallel imports and discusses the Regulation on counterfeit pesticides and how the matter was dealt with by the Greek courts.

In one of IPKat recurring topics, there were news of a New CJEU reference ... asking whether InfoSoc Directive envisages digital exhaustion. Kat Eleonora sets the scene and reports on the four preliminary questions which possibly will be decided by the supreme European Bench. Parties can make comments on the drafting of the questions. Look out for more updates!

Kat Eleonora, together with Katfriend and art law expert Gilberto Cavagna di Gualdana, discuss the question: Freedom of panorama in Italy: does it exist? While in Italy a formal exception to copyright on freedom of panorama does not exist, Mr. Cavagna di Gualdana discusses both the provisions of the Italian Copyright Act and Cultural Heritage Code. Hopefully freedom will be on sight!

The Enhancing access to 20th Century cultural heritage through Distributed Orphan Works Clearance (EnDOW) project, together with the Centre for Intellectual Property, Policy and Management (CIPPM) at Bournemouth University held a symposium revolving around the question whether: Can Crowdsourcing Solve the Orphan Works Problem? InternKat Hayleigh reports.

It is Kat Annsley’s turn to tell us that the EU IPO Observatory study finds trade secrets rule the roost over patents in Europe. This study had the aim to serve as a basis for the policy makers following the adoption of the European Trade Secrets Directive. The results uncovered interesting data but more is needed in order to achieve more definite results.

On to sweet news, Kat Friend Dario Palmas delighted us with the report of a Mock (culinary) trial at INTA 2017 which revolved around a dessert called “Hunting for truffles”. Get ready for the delicious hunt!

And finally, Guest Kat Rosie reports cereal-ous news from New Zealand.  Hundreds of boxes of Weetabix have been impounded as  Weetabix in New Zealand Customs dispute over local rival Weet-bix. The milk shall judge.

Weekly Roundups: Sunday Surprises

Image credits: Cecilia Sbrolli


PREVIOUSLY ON NEVER TOO LATE

Never Too Late 155 [week ending Sunday 9 July] First application of the parody exception in Canadian law - long live Deckmyn!| "Big Box" not found generic or lacking distinctive character, but still .... | Changes to the Singapore copyright system: an update on the recent public consultations | he diplomatic crisis of Qatar and Gulf Cooperation Council's IP | Bundesgerichtshof's landmark ruling to hook extra-territorial patent infringement in Germany | BREAKING: Eli Lilly success as UK Supreme Court finds Actavis products directly and indirectly infringe pemetrexed patent | Monday Miscellany | Sunday Surprises

Never Too Late 154 [week ending Sunday 2 July] I Book Review: Patent Drawing Rules I German Supreme Court holds that extra-territorial delivery can result in patent infringement I Canadian Supreme Court holds promise doctrine "unsound" in AstraZeneca v Apotex Nexium dispute I EU General Court finds bad faith in VENMO trade mark dispute I “Correction” of expiry dates for granted SPCs now finally possible in Italy...sometimes I Book Review: The Law of Trade Secret Litigation Under the Uniform Trade Secrets Act I Chanel victorious in California court battle against Amazon sellers of counterfeit goods I Simplifying Community Registered Design litigation in the UK - Spin Master v PMS I 77M v Ordnance Survey - access to justice for SMEs in IPEC I Canadian Supreme Court holds that Google can be ordered to de-index results globally I Life as an IP Lawyer: Copenhagen, Denmark I UK UPC ratification timetable to continue in September, while Prep Committee acknowledges German constitutional hold-up I Hendrix's portrait is original afterall say Paris Court of Appeal I Covfefe ... the trade mark?! I Injunction available after claimed licence fees paid - PPL v JJPB I Trademark application for the devil's horn withdrawn I Jo Johnson to continue as IP Minister I UPC Order on Privileges & Immunities placed before Parliament today I Celebrate 120 years of AIPPI in Sydney I Event invitation - The Pirate Bay communicates to the public: are there any more online infringement questions to be answered? I Re-using Amazon item numbers (ASINs) for similar goods can constitute trade mark infringement and passing off

Never Too Late 153 [week ending Sunday 25 June] | US Supreme Court holds provision preventing registration of disparaging trade marks unconstitutional | Wolfing down those veggies: it's a matter of the right descriptive term | A googol of generic questions in Ninth Circuit's Elliott v Google decision | Life as an IP lawyer | Former Constitutional Court judge weighs in on UPC ratification suspension | AG Szpunar advises CJEU to rule that a red sole may not be just a colour | Trump and his coat of arms | BMW wins appeal over use of trade mark to promote spare parts business | Around the IP Blogs | Saturday Sundries

Never Too Late 152 [week ending Sunday 18 June] German Constitutional Court stops implementing legislation for Unitary Patent Package | Conference report: Innovation and Competition in Life Sciences Law - Part I | Conference report: Innovation and Competition in Life Sciences - Law Part II | Special K and beyond: tennis brands | CJEU says that site like The Pirate Bay makes acts of communication to the public | The challenge of big data: we ignore it at our professional peril | German court orders Google to stop linking to Lumen Database | Event report: Trends in the creative digital economy | A Tale of Stability - Business Models in the Creative Industries | Paris Tribunal supports heir's claim to looted painting | Kiss singer seeks trade mark registration for hand gesture | Tuesday Wonders | Sunday Surprises





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