TECH TRANSFER RULES OK; THREE FROM THE CFI

Tech transfer rules OK

The IPKat has been dipping into the latest OUP IP title, Technology Transfer and the New EU Competition Rules: Intellectual Property Licensing after Modernisation, a solid little (by recent OUP standards) book by Steven D. Anderman and John Kallaugher.

According to the website blurb, this work is "a timely examination of the completely revised EC competition law regime for intellectual property licensing". Although the Kat couldn't find a statement as to the date of currency of the law as expressed in the book , he doesn't think this is a problem. The text seems pretty current and, to be frank, the law changes very slowly in between new Block Exemptions. The fastest thing around is the speed at which the Commission changes its mind as to how it can best damage IP exploitation in the name of competition - but that's the subject for another book.

Probably the best thing in this book is its approach to old case law. Unlike many other areas of law, the IP/competition interface is not receptive to sudden overnight shifts since IP licences and other contractual provisions may form part of a long-term relationship between parties that evolves in response to market forces, technological change and so on. This book gives an appraisal of old cases (and, by implication, of arrangements made in reliance on them) so that businesses and their advisers can assess whether existing agreements comply with the new law.

Since 1 May 2004 the new Technology Transfer Block Exemption Regulation has pushed the burden of policing EU tech transfer from the Commission to businesses themselves.

Left: Steve Anderman; right: John Kallaugher

If nothing else, the need to shoulder this burden should ensure that sales of this well-constructed blend of the real and the surreal will remain buoyant for some time to come.

Bibliographical details. Price: £95. Format: hardback. Current ISBN-10: 0-19-928214-5; future ISBN-13: 978-0-19-928214-2. Length: xx + 372 pages (the real text finishes on p.289 - the rest is appendices). Rupture factor: middleweight.


Three from the CFI

The Court of First Instance of the European Court of Justice has given three decisions today. They are, in brief:

* Case T‑202/04, Madaus AG v OHIM, Optima Healthcare Ltd (application to register ECHINAID for Class 5 pharmaceuticals unsuccessfully opposed by holder of earlier international registration of ECHINACIN for goods in the same Class. The Opposition Division, the Board of Appeal and the CFI all agreed that "echina-" was short for the plant "echinacea", which was descriptive and that the average well-informed consumer who knew about echinacea would focus on the suffix instead). The IPKat hopes to goodness that neither mark is used for anything that is fatal if taken accidentally, since he confused the two words about six times when reading the decision - and he knew about echinacea in the first place).

* Case T-344/03, Saiwa SpA v OHIM, Barilla Alimentare SpA (Barilla applied to register the SELEZIONE ORO figurative mark, right, for Class 30 pasta and similar products; Saiwa opposed, citing earlier Italian and international registrations of the word marks ORO and ORO SAIWA for many Class 30 goods but not specifically pasta. The Opposition Division and the Board of Appeal agreed that there was no likelihood of confusion but, while the former thought the goods different, the latter deemed them identical. The CFI dismissed Saiwa's appeal despite agreeing that the respective goods were identical and/or highly similar). The IPKat notes that, in this case involving pasta, the CFI's registrar was the aurally confusing Mr Pastor ...

* L’affaire T-388/04, Habib Kachakil Amar v OHIM, is in French and Spanish only. It involves an application to register the device on the left in respect of "vêtements, chaussures, chapellerie, en particulier chaussures de sport". There seems to have been a problem with lack of distinctiveness and the applicant's appeals have all been rejected. If any IPKat reader can shed some light on this case, he'll be exceedingly grateful. Merpel adds, the sign looks like a cross between a Rorschach inkblot and a Nike swoosh to me.