Friday fantasies

Two of Europe's most
slippery customers: will they
get to grips?

Case C-137/12 European Commission v Council of the European Union is a battle of the Euro-titans, with the European Commission picking on the Council on a matter of policy as well as principle. In short, the Commmission seeks an order that would

• Annul Council decision 2011/853/EU of 29 November 2011 on the signing, on behalf of the Union, of the European Convention on the legal protection of services based on, or consisting of, conditional access [reminder to readers -- 'conditional access' is a polite way of saying you can't watch, listen to, play with or download something, usually an IP-protected work, unless you sign up to pay];
• Order the Council of the European Union to pay the costs.

According to the Commission,

" ... Article 114 TFEU is not an appropriate legal basis for the adoption of the contested decision. According to the applicant, the decision should have been based on Article 207(4) TFEU which authorises the Council to conclude international agreements in the field of the common commercial policy, as defined in Article 207(1) TFEU. The present convention does not aim to 'improve the functioning of the internal market', its principal objective being to 'facilitate' or 'promote' the provision of services based on conditional access between the European Union and other European countries. It would have a direct and immediate effect on the provision of services based on conditional access and on the trade in illicit devices and on the services relating to those devices. Consequently, the convention falls within the scope of the common commercial policy. 

... the European Union's exclusive external competence (Article 2(1) and 3(1) and (2) TFEU) has been infringed because the Council considered that the conclusion of the convention did not fall within the European Union's exclusive competence whereas the convention falls within the common commercial policy or, in any case, that the conclusion of the convention is capable of affecting common rules or of altering their scope".

If you want to tell the UK government either (i) what you think about these issues or (ii) what it should think about them, don't hesitate to email policy@ipo.gsi.gov.uk. Initially the Intellectual Property Office asked for comments before the gratifyingly distant date of 17 July 2012 and a special katpat was prepared in order to honour the IPO's recognition that mature thought is a time-consuming activity - even for Kats.  Alas, before it could be conferred, the precious katpat had to be retracted; the IPO withdrew its earlier request in place  of another, soliciting comments by this coming Wednesday, 20 June.  As an aside, does it really matter whether the Commission or the Council pays the costs? Ultimately, is it not the same European Union taxpayers who are paying them?

Chi Onwurah: showing that
you're allowed to remain as
an MP even if you're not
actually talking ...

The UK's copyright-amending Enterprise and Regulatory Reform Bill (most recently discussed by the IPKat yesterday, here) continues to make progress, since a House of Commons Public Bill Committee has been set up in order to review it.  The team consists of two items of furniture (Hugh Bayley and Graham Brady are both chairs), and [says Merpel ... ] perhaps a few planks among the following:  Andrew Bingham, Andrew Bridgen, Lorely Burt, Neil Carmichael, Simon Danczuk, Geraint Davies, Graham Evans, Julie Hilling, Joseph Johnson, Norman Lamb, Ann McKechin, Anne Marie Morris, David Mowat, Ian Murray, Eric Ollerenshaw, Chi Onwurah, Sandra Osborne, Mark Prisk, Chris Ruane, David Simpson, Julian Smith, Iain Wright and Jeremy Wright. One of these names may be worthy of future note: Chi Onwurah is a Shadow Junior Minister for Business, Innovation and Skills; this Kat did a gig on design law last year in the House of Commons at which she spoke: she didn't say a lot, but what she did say was enough to persuade him that she was about five times more useful than the three most recent Ministers for IP, even if they were added together and multiplied by the number you first thought of.

On the subject of the same Bill, there has been a call for written evidence. If you have relevant expertise, you can submit your views in writing to the Committee. If you want to know to submit written evidence to the Public Bill Committee, just click here

Via Patent Docs comes news of the recent release by the Intellectual Property Owners Association of its 29th annual list of the top 300 organizations receiving US patents. The US Patent and Trademark Office abandoned its annual list of top patent recipients in 2006, apparently in order "to discourage any perception that ... more is better". The IPKat lists the top 15 here for your curiosity but, if you go to the link above, you can check out the other 285 via a handy link.   There's not much cheer for the Europeans here; no doubt it will be argued that the absence of a single European patent results in European companies filing fewer US patent applications.  A katpat goes to Chris Torrero for tipping the Kats off about this.

Bend it like Bendtner. Most footballers are about as renowned for their intellectual acuity as Kats are for their football skills, which is why few followers of the Beautiful Merpel Game will have been surprised to learn from the popular media (in this case, The Mail) that Danish international striker Nicklas Bendtner said he didn't realise he was breaking any rules when he revealed a sponsored pair of boxer shorts after scoring for his country in the current Euro 2012 tourney, claiming that this intimate garment (a concept well known to trade mark lawyers: here) was his lucky pair.  The beneficiary of this apparently incidental and unpremeditated act of ambush marketing was bookmakers Paddy Power who, for reasons best known to themselves, had better things to do with their money than sign up as sponsors for this money-grabbing event.  Bookmaking sponsors Ladbrokes have apparently received assurances that Bendtner -- true to the English pronunciation of his forename ("knickerless") -- will not be playing in his underpants when the Danes meet Germany this Sunday.  If this is so, Merpel hopes that this game will not be screened on television until after the 9pm Watershed. This Kat has always been fascinated by the name "Paddy Power" since, in the days when he taught law at Trinity College Dublin, two of the more popular legal drinks in the Irish Republic at the time were whiskeys branded Paddy and Powers respectively.  He always wondered what might happen if the two whiskey blends combined to protect their respective marks against dilution  ...

Licensing and enforcement are handled
by the same department ...

While we're on the subject, following its publication in the Official Gazette on 6 June, Brazil's World Cup 2014 Law No. 12,663 came into force,  This law governs not just the World Cup 2014 but also the Confederations Cup 2013 and World Youth Day. This law grants famous mark status to all trade marks registered in Brazil in the name of FIFA [Such extensive protection is the easy option: you don't need to worry which bits of the Nice Classification cover sleaze and corruption, notes Merpel] and "well-known" status for FIFA marks not filed in Brazil.  Reduced deadlines are being introduced for third party conflicts with FIFA's marks and ambush marketing is to be both a civil wrong and a criminal offence punishable by between three months and one year [Niklas Bendtner, you have been warned!].  For all the rest of the details, see the Di Blasi Parente & Asociados news bulletin here.

Looking out of his window, patent attorney Doug Ealey has determined that, in wet and rainy England at any rate, we have perfect exam revision weather. Doug has accordingly kindly posted a 2012 UK finals revision timetable to help would-be patent attorneys get started -- and equally importantly -- to help them synchronise their studies and discussions. The P2 study guide forum has now been shifted to LinkedIn, where it is an open group. Other good news, he tells us, is that this year's updated Study Guide to the Patents Act is now available from the Chartered Institute of Patent Attorneys (CIPA) via their textbooks page. You can find the timetable here and the CIPA textbook page here.

Remember that post about IP and distance learning? The Kat's post here sparked off quite a bit of email correspondence with readers who had enjoyed distance learning, were currently toying with the idea of doing so.  While the range of comments and observations was wide, and much of it personal and anecdotal, the overall consensus was that distance learning can be a rewarding experience, subject to two conditions: the quality of the syllabus and the course contributors has to be at least adequate, and the distant student has to cultivate enough self-discipline to follow the course conscientiously and not be distracted by the domestic and/or professional commitments that help the student decide to register for a distance course in the first place.  Reminder: details of the Kings College London/Informa course, leading to a choice of diploma or Masters, can be found here.

Not fat, so not
Canadian?

Around the weblogs. "The Big Fat Canadian Wedding “Tax” – SOCAN + Re:Sound + AVLA - Pay Three Pipers and Double for Dancing" is probably the most clumsy title you'll see for any article on an IP blog, but Howard Knopf's prose is more elegant, and sharply focused on some very interesting issues regarding tariffs for the performance of music at live events: see Excess Copyright here.  Art & Artifice's Rachel Buker explains what happened after the University of Alabama tried to assert its trade mark rights against a photorealist artist's depiction of insignia-wearing college football stars here.  On the IP Finance blog, IPKat team member Jeremy writes here on  recent legal decision that must have been a nightmare for an investor in innovation in ICT when the project came unhinged.