NEW ETMR; ONION SEAL SAGA; CROSS-BORDER COPYRIGHT MANAGEMENT

1 Latest European Trade Mark Reports

The November 2005 issue of Sweet & Maxwell's European Trade Mark Reports has now been published, a few days ahead of schedule. Cases reported in English for the first time in this issue are

* Home Depot (Hanseatic Higher Regional Court, Germany) - the now famous decision on whether damages for trade mark infringement in several countries are assessed under the law of each country in which infringement occurred or under the law of the country whose courts are hearing the case;

* Mariotte, Dorler v La Française des Jeux (Cour d'appel de Paris, France) - an unusual case arising from a battle between the owners of the LOTO and EUROLOTO trade marks, involving issues of bad faith and deceptiveness as well as likelihood of confusion;

* Koninklijke Philips v Rotary Shaver Sweden AB (Svea Court of Appeal, Sweden) - final order in a Swedish case relating to the invalidity of the Philips Philishave "three heads" shaver configuration;

* Adidas v H & M Hennes ('s-Hertogenbosch Court of Appeal, The Netherlands) - action for infringement of three-stripe motif by user of two-stripe motif on clothing, and counterclaim for invalidity, both dismissed.

There are also plenty of other cases to read, including the delicious LISMORE/LISA MORI case from Ireland.

The IPKat reminds and urges readers of this blog to let him know if ever they come across interesting recent cases, especially from outside the United Kingdom, that are important enough to include in the European Trade Mark Reports. If you come across any, please email him here.


2 When it comes to the crunch, there's an Onion

The IPKat's good friend Miri Frankel sent him this link to the New York Times. According to Katharine Q. Seelye the White House has been in pursuit of satirical publication The Onion which, it complains, has been using the presidential seal. The newspaper regularly produces a parody of President Bush's weekly radio address on its website, where it features a picture of President Bush and the official insignia. Wrote Grant M. Dixton, associate counsel to the President:

"It has come to my attention that The Onion is using the presidential seal on its website. The seal is not to be used in connection with commercial ventures or products in any way that suggests presidential support or endorsement".

Exceptions may be made, he noted, but The Onion had never applied for such an exception. For The Onion, attorney Rochelle H. Klaskin responded:

"It is inconceivable that anyone would think that, by using the seal, The Onion intends to 'convey... sponsorship or approval' by the president".

She added that, since The Onion and its website are free, the seal is not being used for commercial purposes. That said, The Onion asked that its letter be considered a formal application to use the seal but has not yet apparently received a response.

The IPKat wonders whether President Bush, whose popularity is currently at its nadir, might not increase his ratings in the polls by making retaliatory use of The Onion's own insignia.

President Bush to appoint someone to run the country here
President Bush to appoint next person to walk through the door here


3 Benefactors or conspirators? Proposals on cross-border copyright management unveiled

People have strong feelings about copyight collecting and rights management societies. Some people view them as benefactors whose activities enable creators to harvest a cornucopia of royalty revenues from a diverse and scattered crop of licensed use; others see them as conspirators, plotting to force up the cost of using copyright-protected materials and then wastefully squandering the proceeds. Last Friday the European Commission published Commission Recommendation 2005/737/EC of 18 October (it actually says May, but that's a mistake) 2005 on collective cross-border management of copyright and related rights for legitimate online music services. It's based on the following principles (among others):

* Right-holders should have the right to entrust the management of any of the online rights necessary to operate legitimate online music services, on a territorial scope of their choice, to a collective rights manager of their choice, irrespective of the Member State of residence or the nationality of either the collective rights manager or the right-holder.

* With respect to the licensing of online rights the relationship between right-holders and collective rights managers, whether based on contract or statutory
membership rules, should, at least be governed by the following:

(a) right-holders should be able to determine the online rights to be entrusted for collective management;
(b) right-holders should be able to determine the territorial scope of the mandate of the collective rights managers;
(c) right-holders should, upon reasonable notice of their intention to do so, have the right to withdraw any of the online rights and transfer the multi territorial
management of those rights to another collective rights manager, irrespective of the Member State of residence or the nationality of either the collective rights manager or the right-holder;
(d) where a right-holder has transferred the management of an online right to another collective rights manager, without prejudice to other forms of cooperation
among rights managers, all collective rights managers concerned should ensure that those online rights are withdrawn from any existing reciprocal representation
agreement concluded amongst them.

* Collective rights managers should inform right-holders and commercial users of the repertoire they represent, any existing reciprocal representation agreements, the territorial scope of their mandates for that repertoire and the applicable tariffs.

* Commercial users should inform collective right managers of the different features of the services for which they want to acquire online rights.

The IPKat thinks this could really shake up collective rights management. He's fascinated to know, however, how competing rights managers would seek to strike a balance between the demands of rights owners - who want to be paid as much as they can reasonably get - and rights users, who want to pay as little as they can get away with. Merpel adds, the Recommendation will require a lot more transparency than is demanded at present, which may serve to make both owners and users of copyright materials less suspicious of their aims and objects.