Monday miscellany

Shame on you, Operation Payback. Those many good and honest folk who have tried and failed to get on to the UK Intellectual Property Office's website may by now know that it was because the site was targeted by Operation Payback. "In the news, traces of Operation Payback can be found everywhere. It may by now be clear that these are not the actions of a group rebelious vandals, but organized protests against the reign of extreme pro-copyright organizations and watchdogs for the entertainment industries". It is hard to categorise the Intellectual Property Office's services as those of either "extreme pro-copyright organizations" or "watchdogs for the entertainment industries", but that organisation does provide, among other things, valuable services for small businesses that seek to protect themselves against large predatory companies, for designers who try to ply their craft in the face of mass-produced infringing imported goods, as well as any member of the public who is looking for public domain information that he can freely glean from published patent applications. The IPO is also concerned with protecting and explaining the rights of people who are not intellectual property owners.  By attacking its website in this cowardly, bullying manner, you anonymous cowards at Operation Payback are selfishly depriving many others of that which they need, without even taking the trouble to engage in debate and find out what it is that the IPO is, how it does it, and how your best bet might actually be to try to convince people that you are right. What you are doing is the equivalent of putting a jackboot through the skull of anyone you disagree with.

The IPKat respects the opinions of those who disagree with him.  Indeed this website, together with its moderated comments, has hosted many points of view that are personally inimical to members of his team. In addition, this blog has not hesitated to criticise and condemn abuses of the IP system where they occur Yet, because you do not respect the actions of others, the IPKat cannot respect you. Shame on you, Operation Payback. Shame on you!

Evidence: but how much is relevant?

While on the subject of bullyboy tactics, the picture on the right is worthy of note.  This is the evidence which has been served up  along with the notice of appeal by Intra Presse against the decision of an Opposition Division of the Office of Harmonisation in the Internal Market (OHIM) that its BALLON D'OR trade mark was insufficiently similar to the Community trade mark application for GOLDEN BALLS to support its opposition.  The IPKat has no idea how much of this evidence (600 pages or so, plus CDs) is relevant -- and nor do the applicants for GOLDEN BALLS, since it's pretty much all in French.  The IPKat does however believe that the pile of evidence contains, among other things, his own post on the case -- which surely can't be relevant to the question of similarity. Could all this evidence be simply an attempt to grind GOLDEN BALLS into submission or to bankrupt them with monumental translation fees? The Kat can't help recalling a previous episode when the OHIM Grand Board of Appeal was faced with a mountain of evidence.  This was in Case R-856/2004-G, 3D Shape of Lego Brick, where the Board said this:

"25. The depositions filed by both parties during the proceedings before the Office ― examination, cancellation and appeal ― are substantial. The written submissions alone amount to several thousand pages, not to mention the physical and multimedia exhibits. The evidence comprises expert testimonies, national case law, decisions of the European Courts and the practice of national trade mark registries, patent documents, a great many claims and counter claims, arguments and assertions, all of which had to be carefully sifted and appraised. The Board has also had to pay particular attention to the engineering issues which the various expired toy-brick patents have raised. Clearly, in the decision which follows, it would not be feasible for the Board to refer to, and comment on, every point made by the parties. Therefore, the Board, while not losing sight of the complexity of the case, will principally focus on what it perceives to be the key issues of the appeal".

Will the Board of Appeal take the hint, stick this vast bundle in the recycling bin and focus on the key issue, are the two marks similar?

Good news for those who (i) love patents more than mere words can express or (ii) suffer from serious insomnia: Case Law of the EPO Boards of Appeal (sixth edition 2010) is now available from the European Patent Office here (thanks, Antonio Selas, for the link). For those of you who can't wait to read it, here's the plot-spoiler:

"The revised and expanded sixth edition of Case Law of the Boards of Appeal of the European Patent Office was published in August 2010. The book takes account of decisions available in writing at the end of December 2009, plus a number of important ones from the first two months of 2010. Its individual chapters have also been comprehensively updated in the light of the EPC 2000 revision. It will be an invaluable source of information for anyone concerned with European patent law -- as will the annual supplements published as special editions of the EPO Official Journal".

There's a red-letter day coming up soon, as MARQUES Class 46 members might have spotted.  "The Community trade mark in German Practice – Debate with the Judges of the German Trade Mark" is the appetising title of an imaginative event which MARQUES is holding in collaboration with the Markenverband and the German Patents and Trade Mark Office. The event takes place in Munich, Germany, on 3 December. Hot topics include distinctiveness, risk of confusion and association; the value of well-known marks; preliminary measures; cross-border injunctions and parallel imports and recovery of damages. The proceedings will be in German but, if there is sufficient demand, simultaneous translation will be provided, sparing no expense. Click here for further details and online registration.


Now for three cracking leads, each from the much-appreciated IPKat reader Chris Torrero. 

* First, from the US Government Accountability Office, comes Intellectual Property: Agencies Progress in Implementing Recent Legislation, but Enhancements Could Improve Future Plans, GAO-11-39 October 13, 2010, Full Report (PDF, 41 pages).  Among the many gems here are some references to the suddenly-topical Intellectual Property Enforcement Coordinator (on which see the recent IPKat post here). In addition to he IPEC herself, the office now has an assistant and four "detailees" [this word makes Kats uncomfortable enough unless they come from here] from other federal agencies. The IPEC's office reports that the IPEC chaired the first meeting of the Interagency Intellectual Property Enforcement Advisory Committee in February and that she worked with other federal entities to deliver the 2010 Joint Strategic Plan on Intellectual Property Enforcement to Congress and the public in June, to develop an interagency strategy to combat infringement of IP rights. The GAO recommends that the IPEC, in consultation with the Interagency Intellectual Property Enforcement Advisory Committee, take steps to ensure that future joint strategic plans identify implementing departments and agencies for all priorities and related action items and establish resource estimates to carry out the plan's priorities. Says the IPKat, all this coordination looks like an awful lot of public sector people having lots of meetings with one another. Perhaps what we need is just one more committee ...

* Second is Campaign Takedown Troubles: How Meritless Copyright Claims Threaten Online Political Speech, published by the Center for Democracy & Technology on 14 October (you can read it here). The report seeks to demonstrate how the continued misuse of copyright claims under the Digital Millennium Copyright Act threatens to stifle online political speech. The report examines a dozen cases in which meritless copyright claims managed to have some kind of online political campaign ad removed from services like YouTube. The report chronicles takedown demands from some well-known and respected US media organizations, aimed against ads for candidates from both major parties: "Although similarly overaggressive copyright claims have been made directly to campaigns in the past in the form of cease-and-desist letters, under current copyright law the online takedown process almost always results in immediate removal of the ad, no questions asked. Campaigns often do not have adequate opportunity to refute any allegations before their ads disappear".

* Third comes "Competitiveness Council takes on innovation, patents and more", from the European Union's CORDIS website. Apart from the usual stuff about the need for a European Union patent, there came news that the European Commission has released its plans for the creation of an 'Innovation Union', part of a wider Europe 2020 strategy, earlier this month. Ministers broadly welcomed the European Commission's approach, underlining the importance of placing innovation 'at the core of the EU's internal market for boosting competitiveness'. Innovation, remarks the IPKat, is presumably  nothing to do with the pharmaceutical industry, since it is inconceivable that anything in that sector will displace competitiveness from the core of the EU's internal market.