|Buyology's suppliers, arriving to court |
to hear HHJ Hacon's decision
|The company used to be Wilkinson. |
Now it's just Wilko, dude.
Passionate about IP! Since June 2003 the IPKat weblog has covered copyright, patent, trade mark, info-tech and privacy/confidentiality issues from a mainly UK and European perspective. The team is David Brophy, Birgit Clark, Merpel, Jeremy Phillips, Eleonora Rosati, Darren Smyth, Annsley Merelle Ward and Neil J. Wilkof. You're welcome to read, post comments and participate in our community. You can email the Kats here
|Buyology's suppliers, arriving to court |
to hear HHJ Hacon's decision
|The company used to be Wilkinson. |
Now it's just Wilko, dude.
Today has been one of those English spring days where the warmth of the approaching summer is starting to sneak into an otherwise dull and oppressive London sky, but the truth of the matter is that it's still worth snuggling up against the nearest available radiator It's also more than somewhat damp, as any Kat whose paws have touched the pavement can confidently verify.
|If the cap fits,|
wear it ...
The judge stated that there was no evidence that Mr Perry's name had ever appeared on Brundle's purchase orders and that, in any event, it would make no difference. As regards the forgery, the judge stated, in that very restrained and understated way in which English judges express emotion:
Royal Courts of Justice
Patents County CourtRolls Building, Fetter LaneLondonsales@hmcts.fasteners.co.uk
26th March 2014Claim CC13P00980Dear Mr Perry,
I have re-considered the case CC13P00980 and upon reflection; your opponents (FH Brundle, Betafence and Britannia Fasteners) having used your name on purchase orders for the infringing goods protected under your patent (which seems to be a fundamental point in the case), have colluded to defraud you of substantial sums of profits you were rightfully entitled to and therefore I have reversed my decision in your favour and award £5,000,000.00 in damages that would settle the claim in full.
I apologise that I did not even question your opponents on this issue or the matters concerning the manipulation of design sheets and copyright dates as at the time I didn’t think it was all that relevant.
I order the claimants and counter defendants to pay the claim in full within 14 days and the claim for unjustified threats is dismissed.
Mr Justice Hacon”
... the best that can be said about this purported letter is that for several reasons no one would take it seriously... A deliberate attempt to influence others by means of a forged letter from a judge would be an extremely serious matter. I think the purported letter circulated by Mr Perry, to my clerk among others, is better characterised as a further example of Mr Perry’s intemperate and eccentric behaviour in the conduct of these proceedings. The question I have to decide is what effect, if any, this behaviour should have on costs".The costs regime in the IPEC -- both the overall caps and the scale costs -- is mandatory. There are however three exceptions (i) where the party's behaviour amounts to an abuse of process; (ii) when a claim concerns a registered right which has been earlier certified as being valid; (iii) where a party has behaved unreasonably in an application, in which costs of the application would be awarded at the conclusion of the hearing and where those costs are in addition to the other costs subject to the cap.
|Tiddles prepares for|
his day in court ...
"strikingly unusual but not, in my view, truly exceptional on the scale of unsatisfactory behaviour [which leaves open the fascinating question as to what sort of behaviour one would have to practise in court to exceed the bounds of the merely "strikingly unusual" and enter the realms of the "truly exceptional"]. It is open to me in the present case to take Mr Perry’s conduct into account if this does not give rise to a total award in costs above £50,000."The judge then awarded Brundle an additional £2,000 in costs, as well as further £2,000 to a third party defendant who had also been sued by Mr Perry. The total costs to be paid by Brundle totalled £49,645 - just under the £50,000 costs cap. Following the Court of Appeal's decision in Samsung v Apple  EWCA Civ 1339 and in light of
"Mr Perry’s tendency towards an unrestrained response to anything he does not agree with, whether coming from the court or his competitors"the judge also ordered that Mr Perry publish notice of the judgment in Fencing and Landscaping News.
“An abuse of process is of concern not merely to the parties but to the court. It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice.”
|Billion pound Kat|
|The ethos of the IPEC:|
every effort is being made to
accommodate small litigants
* Sean Gilday (Page Hargrave) started well, but ran into trouble at the end, with his "Elite Patents County Court: re perp, I'll rep". Merpel wonders whether he couldn't have made a bit more of the three 'p's, three 'r's, three 'e's and two 'l's as well as an 'i': words such as 'peril', 'leper', 'leer' and 'peer' are all there for the taking, if only something can be done with them.So who's the winner? It's a tough choice but, on balance, the prize goes to Mark Anderson, who will receive the prize -- a fresh copy of the 11th edition of the Butterworths Intellectual Property Law Handbook -- some time early in the New Year when this Kat is back in his office and can pop it into the post. Well done, Mark; well done, everybody!
* "Procure purely all-IP interest centre? OTT" Suggests Christina Michalos (Barrister, 5RB), which is really good, though Merpel is concerned that some good folk might think that 'OTT' stood for something other than "over the top": "off their trolley", for example.
* "Let recurrences pollute patent priority" pronounces the IPKat's talented Portuguese friend Pedro Malaquias, the recurrences in question presumably referring to some item that keeps on being disclosed within the prior art.
* You'll know there are 35 letters -- and I got to 34 of these with "IPEC: cute pet? Lonely reptile? Or star turn?" So says trade mark attorney Sally Cooper, who ingeniously asks the Kats to consider "Impossibility Theorem" which she bravely and imaginative reframes as follows:
"(1) you take on a maths challenge for your PhD - you get to the end of the numbers - you get the PhD;Good try, Sally, but Merpel -- who has recently learned to count using both paws -- says "no".
(2) you take on a maths challenge for your PhD - you fail to get to the end of the numbers - you don't get the PhD;
(3) you take on a maths challenge for your PhD - you fail to get to the end of the numbers - BUT you also prove that no-one else can get to the end of the particular set of numbers - so you get your PhD.
Maybe (1) or (3) ...?"
* "Cruel corrupt patent troll – yes, I repent!" is the offering from fellow blogger and highly transactional IP solicitor Mark Anderson, of the firm that bears his name. Trolls can be cruel, indeed, but is not "cruel" itself an anagram of something else that trolls are noted for, and indeed motivated by: "lucre"?
* Another troll-based submission comes from Alex Robinson (Dehns), with "Troll, I? Play cute; I protect entrepreneurs".
* "Top entrepreneurial testicle curry plot" is the most exotic of a curious set of propositions from Brian Stevens (Senior IP Consultant, Danfoss), no doubt reflecting the testosterone-charged encounters between leading counsel for the litigant adversaries. Merpel, who has already found some recipes for testicle curry (here and here), has decided not to be so adventurous and to stick to fish balls ...
* "Court interprets pole picture eternally" is the somewhat cryptic offering from Rebecca E. Campbell, who will have endeared herself to fellow Kat Birgit by attaching the explanatory picture on the right. But this entry is nowhere near as cryptic as ...
* ..."Proprise Lectually Entorter Plenitert" and "Enter Lectuour Prise in Pertel Procynil" from Iñaki Gil, who excuses himself on the basis that English is not his first language. To this Kat, who has no science background, "pertel procynil" sounds the sort of thing that SPCs are made of, while "entorter plenitert" might be an obscure Latin tag.
* Ever competitive, Mary Smillie (Rouse) came up with "Ee, lone ruler pet can’t purr, copy?, its litter" (this works best with a Yorkshire accent, she explains [if your device is equipped for sound and people don't mind listening to you laugh, you can hear what Michael McIntyre has to say about Yorkshire accents here]). Other entries from the same source include "Rule: It’s one pet – copycat purr, leer ‘n letter", "In copy rule on letter, pelt ‘ere, cat purrs", "Tap, enter, copy little, precious rent ruler" (is this influenced by economists?) and the thoroughly cryptic "Clue: True IP interest or can tell top perry?"
* Alexandre Kampouris offers a medley of zany suggestions, including but not limited to "Nuttier patent trolls cry: Copier! entitle 'ur Rupee!", "Purple patentee ruttily cries: Cloner! Rot!" and "Truly purple IT-patentee cries: Cloner! Rot!" where, Alexandre explains, "IT" is pronounced "Eye-Tee", as in "Information Technology".
* "Otter-puller copy entertains IP lecturer" ("a presumptuous yet amusing patent case, concerning trawlers, m'Lud"), suggests patent and trade mark attorney Paul Wolff (Paul Wolff Consulting), no doubt appealing to this Kat's academic side.
* "Prior art letter clue, pretty uncle opines", announces Stephen R Postle (Executive Director, Intellectual Property Assets, Sun Chemical Corporation). Who is this pretty uncle, wonders Merpel, who has visions of those beautiful Thai ladies who, on closer inspection, turn out not to be ladies at all ...
* Back to reality, and looking at copyright rather than the registered rights, here comes "Retinue interpret all copy-protect rules", this being the suggestion of Nabil Asaad (Kempner & Partners).
Renly Baratheon (one of the Baratheons of Game of Thrones fame).
* Finally, “A recently erupt toll procure interest” is an entry that comes all the way from Spain, or from Barcelona at any rate, courtesy of Guillermo Hinarejos (J. Isern Patentes y Marcas).
|Yet another IP judge called Richard :|
Richard Hacon - the new IPEC judge
Something is going very wrong with the universe, because your humble moggy almost never gets excited about trade mark cases sufficiently to blog about them, and yet here, lo and behold, he is posting twice in a row about trade mark matters, first from Korea, and now from the fresh, new and exciting Intellectual Property Enterprise Court.
The launch of IPEC was discussed by the blogmeister on the IPKat. The name has attracted much comment. Mr Justice Birss entertained the assembled multitudes at the CIPA President's dinner on 3 October, just two days after the new court sprang into existence, explaining how the new name had been chosen, and speculating on the names that had been considered and discarded (best of all, the "IPKat Court"). But this Kat had not previously noticed that the judge of the freshly minted court was going to be called an Enterprise Judge! Does that not sound wondrous to the ear. This Kat will refrain from the obvious puns and visual metaphors in order to avoid lynching by his colleagues.
The unfortunate timing of the change in status and name of the PCC to the IPEC after the elevation of Mr Justice Birss (as he now is) to the High Court but before the appointment of his successor means that there is as yet no full time Enterprise Judge. So for this auspicious judgment Mr Daniel Alexander QC has stepped up to hear the matter. The case is Bocacina Ltd v Boca Cafes Ltd  EWHC 3090 (IPEC) (14 October 2013) and you can read the judgment in full on BAILII here. (Note also the new neutral citation system to be applied in such cases.)
It is typical PCC, sorry, IPEC, stuff: a passing off matter, with the defendants represented by the second defendant (Dercio de Souza Junior) in person and having filed no skeleton argument or evidence and indeed not being present when the case was called on, but only appearing after a delay of a few hours. The question was whether 'the defendants who, until recently, operated a restaurant and bar in Bristol under the name "Boca Bistro Café" are liable for passing off, having regard to the claimant's earlier use of the mark "Bocabar" for an earlier bar and restaurant in Bristol and "Boca" for some of the goods and services provided there'. The answer, turning very much on geographical proximity it seems, was "yes", and the defendants' UK trade mark registration no. 2594410 was consequently declared invalid.
In an interesting procedural point illustrating the flexibility of the PCC (now IPEC) HH Judge Birss QC (as he then was) had previously in April 2013 given a preliminary non-binding indication that the defendants' defence was not meritorious and that the claim was likely to succeed. In the event, that is what happened.
|Can anyone guess why Welsh law firm Clarke & Hartland opted for IPEC as the name for its IP enforcement service?|
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