TOKYO PROJECT DOES IT IN STYLE;

1 Kandi in the Kitchin Court

An interesting interim injunctive relief issue cropped up in GMG Radio Holdings Ltd and others v Tokyo Project Ltd and another [2005] EWHC 2188 (Ch), first picked up by Butterworths' ever-vigilant All England Direct subscription service and also - unusually for an application for interim relief such as this - by free judgment-only website BAILII. Even more interesting is the fact that it appears to be the first decision of newly-appointed High Court judge Mr Justice Kitchin.

GMG were members of a media group that operated a music business under the trade mark HED KANDI. Between July 1999 and September 2005, 47 compilation albums of dance music were released by GMG under the HED KANDI sign. The covers of these albums were created by Jason Brooks, each featuring one or more women rendered in a pop art style (see above, left and right).

Tokyo Project was incorporated by the second defendant, who worked for GMG till June 2005. That same month, Brooks parted company with GMG and went to work with Tokyo Project. Subsequently, advertisements for Tokyo Project's projects appeared which containing stylised drawings of women (see illustration, right). GMG sued for passing off and applied to stop Tokyo Project using certain artwork in relation to compact discs or for the purpose of promoting certain musical events. Kitchin J had to consider whether GMG had established a serious issue for trial and, if it had, whether injunctive relief should be granted.

GMG's style was described as follows:

The artwork predominantly features a stylised illustration of a woman (occasionally 2 or 3) in various poses with various hair colours characterised by full lips and heavily made-up eyes and black eye brows... the women ... usually had long, straight hair".

Kitchin J dismissed the application. On the evidence, he felt, GMG would have considerable difficulty in making good its claim. In his judgment Kitchin J made it plain that evidence that consumers recognised the style of Tokyo Project as being the same as that of Hed Kandi did not mean that they were confused as to the origin of the parties' respective recordings, which were clearly labelled 'Tokyo Project'. In any event, the balance of convenience overwhelmingly favoured not granting interim relief, which would have caused very substantial hardship to a start-up company.

The IPKat can't see how this case was ever going to succeed, since UK courts have been consistently unimpressed with arguments that intellectual property rights exist in a style. He also notes the message of GMG's Chairman Paul Myners (left), which flashes up on the home page of that company's website:

"We do not do it simply for the profit. we do it for the privilege of serving the public interest".

It is good to know that this spirit extends to providing for the needs of the deserving lawyers Davenport Lyons and 8 New Square, whose fees will doubtless diminish the profit for which GMG "do not simply do it".


2 More on Tamiflu

Since the IPKat blogged Roche's position on the manufacture of its TAMIFLU vaccine against avian flu, from what he has read in today's Telegraph it seems that it's quite possible that neither patent-owner Roche nor enthusiastic generics manufactureres such as CIPLA may be able to keep pace with demand. It all depends on the availability of an essential ingredient, anise (the Chinese star fruit, right), which is itself in short supply. Roche already buys 90% of the world's supply of anise, which suggests there may not be much left for compulsory licensees.

More on Chinese anise here. The ultimate cure: chicken broth with star anise here.