1 Copyright Law in the Digital Society

A most impressed IPKat has been perusing the pages of King's College London academic lawyer Tanya Aplin's recently-published Copyright Law in the Digital Society: the Challenges of Multimedia (Hart Publishing, 2005). According to the website (in a passage also found in the book itself):

"Multimedia technology is a key component of the Digital Society. This book comprehensively examines the extent to which copyright and database right protect multimedia works. It does so from the perspective of UK law, but with due attention being paid to EU law, international treaties and comparative developments in other jurisdictions, such as Australia and the U.S. The central argument of the book is that the copyright and database right regimes are, for the most part, flexible enough to meet the challenges presented by multimedia. As a result, it is neither necessary nor desirable to introduce separate copyright protection or sui generis protection for multimedia works.

This important and original new work will be essential reading for any lawyer engaged in advising on IP matters relating to the new media industries, and scholars and students working in intellectual property and computer law".

The IPKat is always amused to see books described as "essential reading": it makes him wonder how he ever managed without them in the first place.

Merpel says, if you really want to know about the book, I'll tell you. It's developed from Tanya's thesis. While it claims to contribute a thorough examination of the protection of multimedia in the UK, it goes a good deal wider than that since the relative dearth of UK-specific multimedia case law and statutory provision - partially compensated by EU materials - stands in stark contrast with the wealth of jurisprudence and academic thought from the US and indeed Australia. The bibliography and lists of cited cases show how diligent she has been in identifying the digital/multimedia dimensions of both case law and legal writing that was often oblivious to the wider picture which she has constructed. I won't spoil the book by saying how the story ends, but I will say that it shows that the existing legal structure, despite its haphazard evolution, has more virtue and flexibility in it than might be imagined.

Bibliographical details: ISBN 1-84113-356-6. Hardback, xxxvi and 288 pages, £60. Nice blue and silvery-grey cover with white writing (and NOT as illustrated above, right).

More essential reading here.
Inessential reading here.

2 Time for reflection ...

Ananova reports that a 33 year old Belgian man, named only as Gunther R, has been jailed for six months for wearing a fake ROLEX watch. The court, in Dendermonde, heard that the man had been spotted by representatives of Rolex wearing the fake watch; they then complained to the authorities who prosecuted him. The court, ruling that the man had knowingly bought the fake, sentenced him to six months in prison under laws for handling counterfeit goods. He was also ordered to pay a £700 fine for breaching brand name registration laws.

The IPKat would like to know more about this case. While he does not condone counterfeits, six months for knowingly wearing a fake watch does seem a remarkably severe sentence. Do any of this blog's Belgian readers have any further details?

3 CLOPPENBURG not just a pretty place

The IPKat has just found this Court of First Instance decision, delivered yesterday on an appeal against a refusal to register a Community trade mark: Case T-379/03, Peek & Cloppenburg KG v OHIM. P&C applied to register the word mark CLOPPENBERG for retail trade services in Class 35. The Fourth Board of Appeal rejected P&C's appeal, taking the view that CLOPPENBERG designated a German town in Lower Saxony and that the Landkreis Cloppenburg, a territorial district to which that town had given its name, numbered more than 152,000 inhabitants in 2002. The suffix ‘burg’ (castle) was seen as indicating a place and that towns and districts of the size of Cloppenburg were regularly referred to in the meteorological reports and forecasts broadcast throughout German territory and that similar information appeared on signs which could be read by persons driving on motorways or heard by them in traffic information bulletins. The Board added that the name CLOPPENBERG designated the place where the provider of services was based and thus the place where the retail trade services had been planned and from where they were supplied. It deduced that German end users would thus perceive the word CLOPPENBERG as an indication of geographical origin.

To the IPKat's great delight, this bizarre and partly irrelevant decision has been annulled. As the CFI noted:
"41 With regard to the evaluation of the descriptiveness of the sign Cloppenburg, first, the grounds set out in the contested decision which are intended to show that average consumers in Germany know that sign as a geographical location are not persuasive.

42 In the first place, while a word ending in ‘burg’ often corresponds to a geographical location, that ending cannot of itself suffice to demonstrate that consumers recognise in the word ‘Cloppenburg’ the name of a particular town. In point of fact, that ending is used also for surnames and invented words.

43 In the second place, the Board of Appeal’s argument that towns and regions of a size comparable to that of Cloppenburg are regularly mentioned in weather reports and forecasts throughout German territory is unconvincing. In fact, weather forecasts broadcast in the whole of Germany generally take as reference points the great cities such as Hamburg, Hanover, Düsseldorf, Cologne, Berlin, Frankfurt-am-Main, Stuttgart or Munich, and mountains or large rivers. It is rare for a town the size of Cloppenburg to be mentioned.

44 In the third place, while the town of Cloppenburg may appear on motorway and federal road signs and while it may be mentioned in traffic news, the fact remains that such information is intended for a local public. First, directions given on motorway signs for the whole of federal territory are limited to large towns with well-known locations, such as those referred to in the previous paragraph. The town of Cloppenburg will be mentioned only in the surrounding area, thus being addressed to persons wishing to go to that town or region. Second, the same consideration applies to traffic news which is followed with attention only by those for whom the traffic situation in that region is of present interest.

45 Finally, the Board of Appeal has not referred to any attraction or any economic activity for which the town of Cloppenburg would be familiar to consumers throughout Germany".
This was clearly not a case like Nordmilch (Case T-295/01 Nordmilch v OHIM (OLDENBURGER) [2003] ECR II-4365, in which the name of the town was also associated with dairy produce and consumers might have taken it to be a protected geographical indication rather than as a trade mark.

1 comment:

  1. With reference to the decision of the Belgian Court to impose a jail sentence of 6 months, I'd be very interested to know the basis of imposing such criminal liability. Is it copyright or some other designs based right? Or rights in registered trademarks?

    I can begin understand why there is some juridical basis for imposing end user liability for cases of use of pirated software by end users, as software is usually protected by copyright. An infringement of copyright is a theft of the owner's property in his work. Knowingly buying pirated goods which infringes copyright is like buying stolen goods at a hugely discounted price. It is stealing, albeit indirectly, from the owner of the work, of which much effort and resources is committed to creating. Presumably, but not so far-fetched as to defy commonsense.

    In the case of fake Rolex watches, it appears to me to be a trademark issue. It therefore puzzles me as to why end-user liability is imposed. The rationale for the law protecting trademarks is to ensure that traders would be able to differentiate its goods/ services from those of his competitors in the market through the use of signs designating origin. As such, other traders using the registered trademark of another would be visited with criminal or civil liability because the trader is free riding on the goodwill of the trader through deception on the consumers leading to loss to the trademark owner.

    But what criminal act has a consumer committed through the knowing purchase of a fake Rolex watch? Is there any deception in this case? No, because the consumer knows exactly what he is buying. He is buying a watch which looks like watches produced by the Rolex company but made from a different company. The quality may be crap but that's his personal concern and not anybody else's.

    On a strictly trademarks perspective, how has the Rolex company's ability to distinguish its watches through the use of the "ROLEX" trademark been impaired as a result of the action of the consumer?

    Unless the design of Rolex watches is protected by copyright (as in the case of software) or some other rights in design, surely the consumer should be entitled to buy a watch with similar design to a Rolex watch but produced by some other company? Isn't this the fundamental right of the consumer to make rational purchasing decisions based on price and utility? And in this case, such right would surely extend to choosing not to buy watches produced by Rolex simply because they are too expensive!

    So for the sake of some sanity in the post-TRIPS world, please tell me that criminal liability is imposed on a copyright basis or some other designs right basis and not a trademarks basis. Otherwise, this better merely be a quirk of Belgian law.


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