Friday fantasies

The IPKat has often praised the IP community [sometimes unjustly, says Merpel] for its many virtues.  This week, that community has excelled itself.  Yesterday morning one of the Kat's academic colleagues, unexpectedly finding a blind student in his LLM class, put out a request for assistance.  Today he is the recipient of a large amount of advice and guidance, some of which is based on personal experience, and which is helping him to address his own challenge: that of ensuring that the student in question gets the best possible education in his chosen subjects. The lecturer has thanked the IPKat, who in turn thanks the readers of this weblog for their truly appreciated support, advice and guidance.

This has been a happy week for the World Intellectual Property Organization (WIPO).  On Tuesday the United Nations Agency responsible for intellectual property rights was cleared of UN sanctions-busting in the provision of technical aid to North Korea; then, a day later, news broke that WIPO hadn't crossed the boundaries of legitimate assistance to Iran. The IPKat imagines his friends at WIPO must be greatly relieved, but Merpel wonders whether this exoneration -- at the hands of the UN Sanctions Committee -- will be sufficient to satisfy the United States.

Around the weblogs.  "Does the IP system work for SMEs?", asks IP Draughts' Mark Anderson.  The answer is that the question is to broad to answer meaningfully, but that should not let us see how we can make it work better for them.  The 1709 Blog continues the debate as to whether the Meltwater v NLA copyright infringement litigation in England and Wales is about breaking the internet: no it isn't, says Simon Clark; yes it is, responds James Mackenzie.

Fellow Kat Robert Cumming spotted a small but intriguing item last weekend: a report in the Independent on Sunday concerning a study by the University of Missouri-Kansas City and the University of Kansas Medical Center. Using MRI technology to scan children's brains, the study claims that fast-food brands have become so ingrained that the sight of the famous logos associated with them actually triggers increased activity in areas of the brain which is known to be involved in reward-processing and in driving and controlling appetite. The study also claims that the same areas do not respond to well-known logos of a non-cibarious nature, though Merpel is willing to volunteer to see whether the same effect would be observed in relation to handbags and shoes.

Fresh reference.  Via the ever-helpful UK Intellectual Property Office the IPKat has learned today of another intellectual property case that has been referred to the Court of Justice of the European Union for preliminary rulings.  It's Case C-387/12 HI HOTEL HCF, in which a single question is asked, on the interpretation of Article 5(3) of Council Regulation (44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters:

"Is Article 5(3) ... to be interpreted as meaning that the harmful event occurred in one Member State (Member State A) in the case where the tort or delict which forms the subject-matter of the proceedings or from which claims are derived was committed in another Member State (Member State B) and consists in participation in the tort or delict (principal act) committed in the first Member State (Member State A)?"

The IPO, which invites comments by email to Policy at policy@ipo.gsi.gov.uk by not later than 4 October -- that's next Thursday -- has given some clues as to what the underlying litigation is about:

"... The referring court asks whether a court has jurisdiction to adjudicate both on copyright infringement in its territory and also on any contributing act which took place in another member state carried out by a party which assisted in the tort or delict in issue".

And here's some background to another reference.  Last week's Friday Fantasies featured a mention of Case C-360/12 Coty Prestige Lancaster Group GmbH v First Note Perfumes N.V. The IPKat wondered what the background to this Bundesgerichtshof reference was.  Now he knows, since his friend Kai Hendrik Schmidt-Hern (Lubberger Lehment, Berlin), who firm is involved in the matter on behalf of Coty, has told him. In short, First Note sold a perfume article called "Blue Safe for Women" (illustrated, right) to a German reseller. Kai continues the narrative thus:

"We filed claims against First Note before the Regional Court of Düsseldorf based on Community trade mark (CTM) 3788767 (illustrated, above left)) -- 

as well as on the basis of comparative advertising (Sec. 6 II No. 6 UWG - perfume clause), "passing off" and free riding (Sec. 4 No. 9a, b UWG) with regard to the design of Coty's product "Cool Water Woman" (illustrated, right).

The Regional Court of Düsseldorf turned down the claims due to insufficient similarity of "Blue Safe" to the CTM and to the "Cool Water Woman" design. The High Court of Düsseldorf dismissed the action as well, however this time due to a lack of international jurisdiction pursuant to Art. 93 V CTR and Art. 5 No.3 Regulation 44/2001. According to the taking of evidence before the High Court, the article had changed hands in Belgium and the reseller had imported it to Germany to resell it there. We argued that First Note had contributed to the resale in Germany by selling the article and by knowing that the buyer would resell it in Germany. The High Court, however, held that liability as a contributor to the resale in Germany was subsidiary to liability for the direct infringement in Belgium. In the High Court's opinion, liability as a contributor does not establish international jurisdiction of the German courts, when the same act by the defendant has caused liability for a direct infringement in a different member state. 

In its reference decision, the Bundesgerichtshof dismissed the notion that liability as a contributor is subisidiary to that as direct infringer for the purpose of international jurisdiction. It submitted the questions regarding Art. 93 V CTR and Art. 5 No. 3 Reg. 44/2001 as shown below to the ECJ. In our case, "Member State A" obviously is Germany and "Member State B" is Belgium".

Merpel is puzzled as to why "Member State A" is obviously Germany. She always thought it was A for Austria, B for Belgium, C for Czech Republic, D for Denmark, E for Estonia, F for France, G for Germany, H for Hellas, I for Ireland ...