Friday fanfare

As ever, don't forget to check out the IPKat's side bar for Forthcoming Events. Right now, nearly 50 are listed. Some of them are even free!

What is happening to the Peer-to-Patent project in the United States? The IPKat thought at the time, and still thinks, that it's a great idea -- though he's aware that it's unpopular with many patent examiners who are uncomfortable with the participation of knowledgeable sections of the lay public in the patent examination process. He reads that the program has been closed, that is has been suspended and that it is merely not having any further patent applications added until the effectiveness of the program so far has been further considered. Can readers please enlighten this puzzled pussy?

A brand new intellectual property periodical has just been launched: it's the International Free and Open Source Software Law Review, the details of which you can see for yourself here. The IPKat supposes that, with the acronym IFOSSLR, it's bound to be called the "I-fossil review". The editorial board team includes the Kat's friend, Class 46 trade mark blog team-mate and visionary Tomasz Rychlicki, plus lots of other good folk.


It's not every day one sees a new legal decision on malicious falsehood -- that close cousin of the common law torts of passing-off and deceit -- so the IPKat is delighted to thank his friend Richard Kempner (Kempner Robinson) for telling him about Ajinimoto Sweeteners Europe SAS v Asda Stores Ltd [2009] EWHC 1717 (QB), decided this Monday by Mr Justice Tugendhat of the Queen's Bench Division, England and Wales. Asda sold products in its "Good for you" range containing what it described as "no hidden nasties", i.e. "no artificial colours or flavours, no aspartame & no hydrogenated fat". Ajinimoto, which enjoys 45% of the European market for aspartame, took exception to this:

"The complaint is that, by advertising that their own brand products do not contain aspartame, ASDA is impliedly making a statement derogatory of products that do contain aspartame, and so of aspartame itself. The Claimant claims that this implied derogatory statement is a false statement. The Claimant goes on to say that ASDA know that the implied statement is false, and that that is malice in this context. The Claimant claims that these false statements are calculated to cause pecuniary damage to the Claimant in respect of its business. The Claimant claims that if such statements continue to be made by ASDA, then shoppers will be scared of buying products containing aspartame, and the Claimant will lose sales".

The judge considered that the words used by Asda only meant that, if the customer thought that aspartame might be bad for him, or unpleasant to taste or consume, then Asda's products would be for him. The IPKat wonders what Ajinimoto's policy is with regard to the many websites that make far more explicit assertions regarding their product, eg. sweetpoison.com and Dorway's Aspartame & Aspartame Poisoning site (for those who want a very different view, visit Aspartame.org). Merpel adds, for those readers who like neither aspartame nor Asda (it being the British face of the much-criticised US retail giant Wal-Mart), this is what Oscar Wilde might have called "the inedible in pursuit of the unspeakable" ...


A curious little (or is it 'Lidl'?) case has been referred to the Court of Justice for a preliminary ruling and the IPKat doesn't know whether it's an IP case or not. It's Case C-159/09, Lidl SNC v Vierzon Distribution SA, which was referred by the Tribunal de commerce de Bourges (France). The question is this:

"Is Article 3a of Directive 84/450, as amended by Directive 97/55, to be interpreted as meaning that it is unlawful to engage in comparative advertising on the basis of the price of products meeting the same needs or intended for the same purpose, that is to say, products which are sufficiently interchangeable, on the sole ground that, in regard to food products, the extent to which consumers would like to eat those products, or, in any case, the pleasure of consuming them, is completely different according to the conditions and the place of production, the ingredients used and the experience of the producer?".

Can any reader shed light on this reference?

An assiduous student of IP writes: "Can anyone recommend any reading material on the relationship [the IPKat is tempted to add the words "if any"] between the World Intellectual Property Organization and the World Trade Organization?" So, dear readers, if you have any recommendations, can you please either (i) post them below or (ii) email me here and I'll pass them on.


Debate continues over the ruling of the European Court of Justice in L'Oréal v Bellure and the relative virtues of (i) protecting brands against imitations and/or (ii) preserving commercial speech (see earlier IPKat posts here, here, here and here).

Left: they look alike, they may even smell alike -- but common origin and individual identity evoke contrasting responses

This time it's the turn of the highly respected German trade mark expert, Berlin-based Andreas Lubberger (Lubberger Lehment), who displays no little creativity in putting together this letter. The IPKat says thanks, Andreas, for making this contribution. Merpel doubts that it will be the last word on the subject ...

A few souls have picked this item up off IPNow, but Mark J. Williams (Phillips Ormonde Fitzpatrick) was first. It's the tale of AJ Enterprises (Aust) Pty Ltd v McDonald’s International Property Company Ltd [2009] NZIPOTM 12, in which the now green and lovely fast food company failed again to prevent the registration of Anisha's single arch device for, among other things, food, drink and restaurant services in Class 43. Said the hearing office: "the whole of the applicant’s mark is not similar to the whole of the opponent’s mark". The same thing happened in Australia back in 2004. The IPKat wonders whether, given Anisha's choice of red-and-livery and "You'll love it" slogan, at least in Australia, passing off might have worked better than trade mark opposition: given the fact that a large proportion of relevant consumers probably like to wash down their tucker with a tube or three of amber fluid, anyone who finds themselves seeing double will certainly struggle to tell Anisha's arch from that of McDonalds.

What can be done about Swine 'Flu? The best suggestion received by the IPKat so far is to have it administered by the European Patent Office: that should delay its onset by several years ...