Solar power not exhausted

The IPKat found Sun Microsystems Inc v Amtec Computer Corporation Ltd [2006] EWHC 62 (Ch), a Chancery Division yesterday from Mr Justice Warren, so far available only on the Butterworths' (LexisNexis) All England Direct subscription service.

Sun owned various trade marks. A Danish intermediary, KS, supplied Amtec with Sun Fire V240 servers that it obtained from a company in the UK. These Sun Fire V240 servers were neither imported into the European Economic Area, nor put on the market anywhere in the EEA by Sun or with its consent. Sun sued for trade mark infringement. Amtec argued that (i) it thought KS was a reputable European source of Sun products and (ii) it was a term of the contract between Amtec and KS that the servers be of European Union origin.

After Sun sought judgment in default or summary judgment, Amtec conceded that it had infringed Sun's trade marks, but said that it had done so innocently and reasonably, in the belief that it was allowed to do what it did.

Warren J had no time for Amtec's arguments. He held that it was not a defence for an importer of infringing goods to show he had taken all reasonable steps open to him to establish that goods had been put on the market by Sun, or with its consent. Amtec was therefore an infringer unless it could show that its servers had been put on the UK market by Sun or with its consent.

Giving judgment, Warren J held that Sun was entitled to orders designed to identify any other infringements Amtec had perpetrated.
* Following an enquiry into those infringements, Sun would be given the chance to make an informed election between damages and an account of profits.

* The correct balance to strike between the parties was to grant an injunction, but to permit Amtec to carry on selling Sun servers sourced in accordance with specified conditions.

* Sun would keep its right to an injunction, damages or an account of profits if there was any further infringement.
The IPKat has never been happy about regional trade mark exhaustion and feels quite uncomfortable about parallel traders having to pay damages for selling genuine goods that appear to have been sold in good condition. When IP law is coming under fire from all sides, this sort of protection is the most difficult to defend on moral, as well as economic, grounds.

Follow the Sun here and, less obviously, here

Glass patent case: not much to see

The patent infringement case of Tamglass v Luoyang, noted by the IPKat on Friday, is now available here in full on BAILII. As he predicted, it's mainly fact-based and contains virtually no law at all.

Letting go of IP rights: an Italian writes ...

The IPKat's friend Andrea Glorioso writes:
“On reading your report of 26 January 2006 on the FT Workshop "Letting go of intellectual property rights?" I cannot but wonder if the author realizes that both Open Source Software and Wikipedia (and related instances of "IPR-less innovation") do in fact rest upon IP rights—namely copyright.

The fact that one can choose a model of licensing over another does not mean that IP is not there. Quite to the contrary - it would be difficult to license, or to contract over, a right you don't own in the first place; indeed, it would be quite hard for projects such as Linux or Wikipedia to thrive, if it weren't for properly enforced and managed property rights (although the extent to which participants to these projects are aware of the IP dynamics involved, or are rather motivated and shaped by a sort of "customary norms", is an open question).

A better title for the article would have been "Letting go of absolutistic views on intellectual property rights". But in this world it is apparently easier to have an absolutistic view clash with another absolutistic view, rather than trying to reason and understand where the middle path lies".
The IPKat agrees. Merpel adds, Andrea’s right about the clash of absolutist views—just look at the so-called debate over the European Union’s proposed Computer Implemented Inventions last year.

Journal of Intellectual Property Rights

IPKat co-blogmeister received this message from Mrs Madhu Sahni:
“You will be glad to know that our institute, a constituent unit of the Council of Scientific & Industrial Research, Govt of India, is publishing a bimonthly IPR journal entitled Journal of Intellectual Property Rights to serve the professionals handling IPR issues, scientists, technologists, and managers of R&D institutions and industry. It also caters the needs of all those interested in IPR matter, including academicians, policy makers and managers in S&T departments/agencies and industries. It is a peer-reviewed journal.

The Journal,the only one of its kind in India, has completed its ten years of publication in 2005. It publishes contributed/invited articles, case studies and patent reviews; technical notes on current IPR issues; literature review world literature on IPR; national and international IPR news, book reviews, and conference reports. Besides contents and abstracts full text of the papers is also available on our website

The journal has a wide circulation among the growing intellectual property community in India as well as in other countries".
The IPKat wants to clarify that this journal is unconnected to Oxford University's Electronic Journal of Intellectual Property Rights, despite their near-identical titles. Merpel adds, the Indian publication has been going since 1996. Oxford's started two years later. Do you think they'll sue?

More Anglo-Indian intellectual property confusion: EIPR (left) v EIPR (right)

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