Boehringer bans adverts till trial; Cablevision hit by US ruling

Another little IP gem from online subscription service LexisNexis Butterworths is the Chancery Division for England and Wales decision on Monday of Mr Justice Patten in Boehringer Ingelheim Ltd v Vetplus Ltd, so far unreported on BAILII.

This was an application by Boehringer for ex parte interim injunctive relief to stop Vetplus publishing an advertisement and a press release in various journals relating to one of its products. The press release in cited Boehringer's own test results, which the company had handed over to Vetplus on the basis that they were not to be disclosed. According to Boehringer, publication would denigrate its product. In support of its application, Boehringer produced a list of test results it had carried out and other results carried out by others, all of which were designed to indicate that the test results which formed the basis for the press release were scientifically unreliable.

Patten J granted Boehringer's application on the basis that, under the circumstances, it was appropriate to ban publication until trial. The scientific evidence pointed only one way, showing that Vetplus's own scientific evidence was unreliable and wrong. Even if there was room for legitimate doubt, the status quo should be preserved, subject to Vetplus being given liberty to apply to discharge or vary the order before trial.

The IPKat is fascinated by scientific evidence: whether in the hands of lawyers or scientists it seems almost endlessly open to interpretations and methodological objections and its veracity is certainly not an ideal issue for determination in interim proceedings. Merpel adds, it's not surprising that Boehringer's evidence only supported Boehringer's case - but Boehringer would be duty-bound to disclose adverse evidence too. If it became apparent that contrary evidence existed, to Boehringer's knowledge, but was not produced at the interim stage, one imagines that the court would have something pretty pungent to say about it.

It's been too long since the IPKat's friend Miri Frankel sent him this link to the New York Times, "Cablevision Loses Suit on Network DVRs". This tells of the Federal Court ruling that Cablevision Systems Corp.'s network digital video recorder experiment was a mega-infringement of copyright law. The standard set-top digital video recorder with a built-in hard drive lets TV viewers store and replay shows when they like while skipping commercials. The network DVR would let any customer with a digital set-top box record and replay back shows in the same way, while storing the programmes in Cablevision's remote computer servers.

Several studios and cable networks sued, since they had not given their permission for the rebroadcast of the programmes. Cablevision said that, since the control of the recording and playback was in the hands of the consumer, not itself, the devices were compliant with copyright law on an application of the Sony v Universal City Studios doctrine (the Betamax case). Judge Denny Chin disagreed and this dispute is now likely to ascend the judicial ladder in the form of an appeal.

The IPKat thinks this was an accident waiting to happen. The studios are always going to sue and there must be an argument for getting them onside at the beginning of a project like network DVRs rather than making them your enemies from Day One.

Right: Catatonia caused by too much TV viewing

Merpel says, you forget that the US is a litigation-oriented culture. Suing someone in these circumstances can be seen as a prelude to a warm and loving business relationship ...

Copyright suit here
Cat suit here
Boehringer bans adverts till trial; Cablevision hit by US ruling Boehringer bans adverts till trial; Cablevision hit by US ruling Reviewed by Jeremy on Wednesday, March 28, 2007 Rating: 5

No comments:

All comments must be moderated by a member of the IPKat team before they appear on the blog. Comments will not be allowed if the contravene the IPKat policy that readers' comments should not be obscene or defamatory; they should not consist of ad hominem attacks on members of the blog team or other comment-posters and they should make a constructive contribution to the discussion of the post on which they purport to comment.

It is also the IPKat policy that comments should not be made completely anonymously, and users should use a consistent name or pseudonym (which should not itself be defamatory or obscene, or that of another real person), either in the "identity" field, or at the beginning of the comment. Current practice is to, however, allow a limited number of comments that contravene this policy, provided that the comment has a high degree of relevance and the comment chain does not become too difficult to follow.

Learn more here:

Powered by Blogger.