Monday miscellany

Mark's dream: an entire module of the course will
be dedicated to calculating complex royalty distributions
In "Postgraduate diploma in IP transactions - an update", the IPKat's friend Mark Anderson tells us a bit more about his work on the programme for a 2-week residential course, which would form part of a proposed postgraduate diploma in IP transactions. He adds:
"The law faculty of a leading UK university has shown strong interest in hosting the course, so we are working up more detailed proposals. We hope to start running the course from Autumn 2012, although this timetable is tight for getting through the university's procedures".
If you are an experienced IP lawyer and are interested in helping to run the course, or are even mildly curious about how it will work, phone Mark on +44 (0) 1865 858 878 email him here.

Various good souls, of whom the first was the Kat's old friend Jim Davies (ElevationLegal), have reminded the IPKat that Rod Beckstrom is standing down as the Chief Executive Officer of ICANN.  You can see the official statement here. There's some speculation as to whether Rod will go the same way as the recently departed Chairman, Antipodean IP lawyer Peter Dengate-Thrush, who metamorphosed from the man tasked with pushing through the new gTLDs (much hated by most big brand owners) to being appointed chairman of Minds + Machines, a leading consultancy selling ... new gTLD registry services. The Washington Post is among those who are not impressed.

IQ Biometrix
BetaBeat ("The Lowdown on High Tech") carries this piece by Ben Popper, "Patent Trolls Come in All Shapes and Sizes", which Ben describes to the Kats as "a large investigative feature taking a deep dive into a single case of a bumbling patent troll", that troll being IQ Biometrix (which offers "facial identification solutions").  Ben spoke with many patent folk for the piece and he assures us that, whatever they may have thought about trolls, they all recommended this blog. Nice of you to say so, Ben.

The IPKat notes with interest that the European Patent Office has refused a patent for a modification of the highly addictive Tetris computer game. The decision in question is T 1782/09 Game apparatus / Bandai Co Ltd, a Technical Board of Appeal decision of 5 May 2011, in which it was held that the application was a "mixed" invention in which the non-technical aspects of the features which distinguished the invention from the closest prior art (this being the Tetris game itself) were nothing more than modified game rules which are barred from being patented since they're excluded subject matter under Article 52(2) of the European Patent Convention; to the extent that there were any technical features in the invention, they reflected nothing more than the technical implementation of these modified rules and were therefore obvious.

There's a fun appeal heading for the Court of Justice of the European Union in Case C-306/11 P XXXLutz Marken GmbH v Office for Harmonisation in the Internal Market, Natura Selection SL, an appeal against the finding that the marks 'Linea Natura Natur hat immer Stil' and 'natura selection' were similar purely on the basis that both signs contained the word element 'natura', though that word element was not the dominant element of the earlier trade mark. Without knowing the facts or the reasons of the litigation so far, this Kat imagines that this is one of those cases that only German ingenuity can create. We may be left in the end with a special rule for comparing a six-word mark with a two-word mark where the second word of the six-word mark is identical to the first word of the two-word and both are three-syllable Latin words beginning with the letter "N".

The original World
War Two poster
The IPKat, who is always calm (except when he's having a rant ...) and perpetually carries on, has discovered that the slogan ‘Keep Calm and Carry On’ has been registered as a Community trade mark by a UK company based in Weybridge, its name being Keep Calm and Carry On Ltd.  Its stock in trade, if the company's website is anything to go by, is full of products carrying that slogan. The mark is a word mark only, but the appearance of the original World War Two poster (right), with the royal crown, have not been registered.

The United Kingdom is one of only a few countries that has Crown copyright.  If Crown copyright subsists in the trade marked slogan (and it is by no means certain that there would be any copyright at all in such a short, banal slogan), it would not have expired yet since the poster was never actually published during the war, so far as we are aware. However it is re-usable under the UK's Open Government Licence.  Under this licence

"You are free to:
copy, publish, distribute and transmit the Information;
adapt the Information;
On sale from Keep Calm
and Carry On Ltd for £8

exploit the Information commercially for example, by combining it with other Information, or by including it in your own product or application".

The Kat has been asked if he thinks that the Community trade mark registration could be challenged on the grounds that the slogan (i) had been widely used in the UK for some years and (ii) would not be recognised, at least in the UK, as indicating trade origin. Provisionally the Kat thinks that there is no challenge per se under (i), since prior use is not a ground on which a CTM can be nullified unless it establishes that the mark is non-distinctive, descriptive or suffers from some other defect which would prevent the relevant consumer from associating it with the owner's goods or services. (ii) however -- if it can be substantiated -- could be fatal to the registration.  Readers are welcome to share their comments, so long as they remember to keep calm ...
Monday miscellany Monday miscellany Reviewed by Jeremy on Monday, August 22, 2011 Rating: 5


  1. The epo decision you actually linked to -T2127/09- is a related tetris decision in which the board came to a different conclusion. At least some of the technical aspects were not 'notorious' and so the application, which had not been searched, was remitted with the order to perform an additional search.

  2. @Anonymous-- thanks for this. When time permits, I'll try to dig up the right link.


  4. On "Keep calm and carry on" - would I be able to register

    "Community trade marks - No thanks!"???

    and perhaps sell badges with that slogan, just like the badges found here:

  5. Interesting to see that the history of the poster on the Keep Calm ... website refers to Her Majesty's *Stationary* Office. When I keep calm, I am generally stationary.

  6. Re Keep Calm... it would seem that you could argue that the mark would not be recognised as a TM. However, who is going to invalidate it? I would expect that so long as the company only demands a small amount of cash from other users, they are unlikely to take it further and may just stump up the cash.

    I wonder if the government missed a trick by giving it away on an Open Gov licence...

  7. It looks like the poster has been published, although circulated only in limited numbers.

    If sending it to the police counts as publishing, it was published 1939.

  8. Does anyone know the outcome of this?


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