THURSDAY TIDBITS

1 It's SCRIPT-ed again

The September 2005 issue of online intellectual property SCRIPT-ed, published by the AHRC Research Centre for Studies in Intellectual Property and Technology Law based in the School of Law at the University of Edinburgh, is now available online. SCRIPT-ed contains peer-reviewed articles, costs nothing to read online and is jolly good.

This issue leads with a piece by QM's Johanna Gibson (left) on the Patenting Lives Reseach Project and the other features, dealing with subjects as as the .XXX top-level domain and the operations of the UK's Copyright Licensing Agency, look lively and well-presented. Says the IPKat, keep up the good work!


2 Industry complains of poor patents

The IPKat is endebted to ZDNet UK for reporting on a survey, published by the US-based Intellectual Property Owners Association, that found that 10 percent of companies who hold patents in the computer, electronics or software industry thought the quality of patents being issued is poor, while 40 percent thought it was less than satisfactory. The overall perception of patent quality is lower than in the chemicals, pharmaceuticals and biotechnology industrys or in the consumer products, machinery and general manufacturing industry. In these industries, none of the respondents thought the quality of patents being issued was poor, although around half thought the quality of patents was less than satisfactory.

This survey may reflect attitudes, says the IPKat, but that doesn't necessarily mean that the patents are bad - or even effectively useless, such as the cat-exercise patent illustrated here (left). It only means that there is a gap between what industry expects and what it gets. But Merpel comments, if industry said it was happy with the quality of patents, you'd probably say that meant they were good quality, wouldn't you?


3 One in the eye for ophthalmic preparations CTM application

The Court of First Instance (CFI) handed down its decision today in Case T-130/03, Alcon Inc. v OHIM, Biofarma SA intervening. Alcon applied to register the word TRAVATAN as a Community trade mark for ophthalmic pharmaceutical preparations in Class 5. Biopharma opposed, in June 1999 (that's the previous century, remember?), alleging a likelihood of confusion with its Italian word mark TRIVASTAN for "pharmaceutical, veterinary and hygiene products; dietary products for infants or patients; plasters; materials for dressings; tooth fillings and dental impressions; disinfectants; herbicides and pesticides’" all in Class 5. The Opposition Division found that the use of TRAVISTAN was proven for a 'peripheral vasodilator intended to treat peripheral and cerebral vascular disturbance and vascular disorders of the eye and ear’ and allowed the opposition for all the goods claimed in Alcon's application. The Board of Appeal dismissed the appeal and so too, this morning, did the CFI.

The CFI held that the marks were visually and phonetically similar, then added this on the issue of conceptual similarity:

"71 As regards the comparison of the signs from a conceptual point of view, the applicant asserts that the signs are distinguishable in that respect, since TRAVATAN is devoid of meaning, while the first syllable of the earlier mark TRIVASTAN means ‘triple’ and its second syllable ‘vas’ is an allusion to the adjective ‘vascular’. The only syllable common to both signs has no particular meaning or distinctive character in respect of goods in Class 5.

72 The Board of Appeal found that the words ‘trivastan’ and ‘travatan’ have no significance for the Italian consumer.

73 The Board of Appeal’s assessment must be endorsed. It does not appear likely that the earlier mark TRIVASTAN indicates to the relevant public, even if that public also includes professionals, that the product is one having triple strength and used for vascular disorders. Even if the public could understand ‘tri’ as being a reference to ‘triple’, it is not obvious what ‘triple’ refers to. Moreover, as OHIM found, there are words in Italian beginning with ‘tri’, but in which that ‘tri’ does not mean ‘triple’ at all (e.g. ‘tributàrio’ (fiscal or tributary) or ‘tribolàre’ (to cause suffering)).

74 The words ‘travatan’ and ‘trivastan’ must therefore be considered to have no particular meaning for the Italian consumer and, consequently, there is no conceptual similarity between the signs in question".

The IPKat is sure this is right and feels that special caution should be exercised with regard to the poor old consumer. If you're taking something for your eyes, it may just be that you don't see too well. If so, even a small degree of visual similarity might be sufficient for you to end up putting some noxious substance on your eyes by accident.