ORDERING A NAME-CHANGE; ANOTHER BOND; TAMIFLU

1 John Doe ordered to change name

Daikin Europe N.V. v Daikin International Ltd, a Chancery Division decision of Mr Justice Peter Smith of Tuesday 11 October, has been drawn to the attention of the IPKat by his friend Christina Michalos of Media Law Chambers 5 Raymond Buildings (on whose website a short note of this decision can be found).

The two Daikins were the European and UK subsidiaries of an international group of companies with businesses involving air-conditioning and fluorochemicals. The press often referred to them as 'Daikin International' (the name chosen by the defendant company). The Daikins applied for an order that the defendant change its name on the basis that it was inherently deceptive (this was done in Glaxo plc v Glaxowellcome [1996] FSR 388). The order was sought not just against the existing members of the defendant but also as a John Doe order to bind future company members, in the wake of the decision in Halifax plc v Halifax Repossessions Ltd (CA) that the court had no power to circumvent the statutory provisions requiring company members to pass a special resolution in order to change the company name.

In the High Court of Justice (left) Peter Smith J ordered the defendant and its named members to change the company name and granted a John Doe order against all company members within the meaning of s.22 of the Companies Act 1985. The Court of Appeal in Halifax plc v Halifax Repossessions Ltd held that, to make an order requiring a company to effect a change of name, the procedures in the Companies Act 1985 governing name change could not be circumvented. Accordingly, it was necessary for applicants to seek mandatory orders against the members of the company requiring them to change the company name. Joining a John Doe defendant (specified as all members of the company) avoided the difficulty of the order not being enforceable if the named joined members had changed by the date the order was granted or new members had joined, whether this was done deliberately to defeat the order or innocently as part of a mere change in the membership.

The IPKat feels great sympathy for businesses that have to waste their time and resources swatting flies like the defendants in this case, who parasitically choose company names that can only be of assistance to the businesses they're likely to be confused with. If these people were automatically barred from forming companies or serving as directors for a term of years, it might encourage them to take a more honest approach towards naming their companies.


2 "My name is Bond ..."

Ananova reports that the new James Bond is to be Daniel Craig (right). The IPKat is not impressed. The author of the real James Bond books, Ian Fleming, has been dead since 1964, since which time the James Bond character has been diluted through (i) his exposure to a host of puny escapades written by literary hacks and (ii) his portrayal by a variety of actors of different shapes, sizes and degrees of charm.




The IPKat ventures to suggest that "James Bond" - whose heyday was as Sean Connery(left) with the original stories such as Doctor No and Goldfinger -is now so diluted as to consist of little more than a common forename and a common surname, conveying little other secondary meaning. Why don't the rights owners just auction the right to be "James Bond" on a year-by-year basis, via eBay? Merpel says, "tut, tut. Just because they didn't ask you ..."


3 Not balm from Gilead but Tamiflu from Roche

Browsing through Quad-City Times, the IPKat has just been reading about Tamiflu, an antiviral pill invented in a San Francisco Bay Area lab and made in part from a spice used in Chinese cookery, which has emerged as the world’s first line of defence against bird flu. As nations begin to stockpile the drug in anticipation of a flu pandemic, calls are mounting for countries to sidestep patents on the drug — as Brazil first did for AIDS medications — and make their own generic versions. But Swiss pharmaceuticals giant Roche, which acquired rights to the drug from Gilead Sciences Inc. in 1996, says it has no intention of letting others make it. The immediate problem is not the cost of Tamiflu, which runs about US$60 for a 10-pill course of treatment, but a staggering gap between the sudden demand for it and the capacity of its sole manufacturer to produce it. Although Roche has increased production of Tamiflu eightfold in the past two years, it will take $16 billion and 10 years to make enough of the drug for 20 percent of the world’s population, said Klaus Stohr, director of the World Health Organization’s Global Influenza Program, in recent comments to reporters in San Francisco. Ira Longini is an Emory University professor whose computer model of a potential avian flu pandemic shows that an outbreak could be snuffed out within a month by rushing antiviral drugs to the place where it started. He says:

"Something has to be done. When you think of the potential damage a pandemic flu could do, and how little drug we have, the situation is quite absurd. It makes sense to do something along the lines of what was done with AIDS drugs".

James Love, director of the Consumer Project on Technology in Washington, adds: "The WHO should buy stockpiles from generic suppliers. If patents are in the way, the WHO should ask the manufacturing country to issue the appropriate compulsory licences. The patent owner will receive royalties, but we will have the stockpiles". Roche will not release its Tamiflu production figures, deeming the information “commercially sensitive”. However, he said the company produced “many hundreds of millions” of the pills annually. In response to WHO concerns about bird flu this summer, the company agreed to donate enough Tamiflu to treat 3 million people.

The IPKat reminds readers that compulsory licence provisions have been part of patent law since Article 5 of the Paris Convention back in 1883, not to mention Article 31 of TRIPs. He wonders if Roche is serious in its statement that it intends to be the sole manufacturer of Tamiflu or whether this is part of a posturing exercise that is designed to get the highest royalty rate for products manufactured under compulsory licence.

Merpel reminds readers that, for any flu - avian or otherwise - you can't beat a good bowl of chicken soup.