Wednesday whimsies

Watching the bird? No,
keeping an eye on Sky ...

To the acute disappointment of all trade mark enthusiasts and Skywatchers, there isn't going to be another round of the mesmerising litigation in Starbucks (HK) Limited v British Sky Broadcasting Group plc and others.  This is because the recent decision of the Court of Appeal for England and Wales not to stay Starbucks' trade mark infringement action against Sky pending the outcome of cancellation proceedings before the Office for Harmonisation in the Internal Market (OHIM) in Alicante Starbucks v Sky (noted here by the IPKat) is the subject of a failed application for permission to appeal to the Supreme Court.  The application, UKSC 2012/0221, was refused on 30 October by a three-man panel consisting of  Lords Neuberger, Mance and Sumption in the following manner:

 "THE COURT ORDERED that permission to appeal BE REFUSED in relation to the point of European Union law raised by or in response to the application, permission to appeal BE REFUSED, because it is not necessary to request the Court of Justice to give any ruling, because of the following reasons; in relation to the point of European law which the applicants submit arises, (i) “special grounds” [under Article 104(1) of the Community Trade Mark Regulation, under which a stay of infringement proceedings pending determination of the trade mark's validity] must relate to the factual circumstances specific to the case, but it is for the domestic court to assess whether such grounds exist on the facts, (ii) the Court of Appeal has undertaken this assessment, (iii) whatever the exact parameters of “special grounds”, the court below were clearly justified in concluding that they exist on the facts [which may well be the case, but how do you know whether "special grounds" exist on the ground unless you know what you're looking for in legal terms...?] and furthermore, (iv) a stay of the order for expedited trial of the English proceedings, pending a reference to the Court of Justice for a ruling on the interpretation of “special grounds”, would lead to the trade mark claim being unresolved probably for years, while a reference to the Court of Justice without such a stay would be moot, since the English proceedings would meanwhile have resolved all issues [unless of course the English proceedings were stayed, in which case they wouldn't have been able to resolve the issues.  Merpel wonders whether, on this logic, we'll ever be able to get a preliminary ruling from the Court of Justice on the meaning of the words "special grounds" on any set of facts]".

The IPKat understands from an impeccable source that the giving of such detailed reasoning is something of an innovation on the part of the Supreme Court's new President.

Happy birthday! The IPKat salutes Sir Sydney Kentridge QC (Brick Court Chambers), who today celebrated his 90th birthday by appearing before the Supreme Court in the dispute between insurance giant Prudential and Her Majesty's Commissioners for Revenue & Customs as to whether accountants are entitled to the benefit of professional privilege.  While Sir Sydney is not primarily known for his intellectual property practice, he is part of the rich and varied history of intellectual property in the United Kingdom.  In 1988 he was in the House of Lords  in CBS and others v Amstrad, where, representing British Phonogram Industry, he failed to persuade their Lordships that the sale by Amstrad of cassette-to-cassette tape recorders constituted an authorisation to infringe copyright.

Time to stand up and be committee'd.  The Law Society for England and Wales is seeking to fill vacancies on a number of its committees. These include the Intellectual Property Working Party and the Technology and Law Reference Group. If you fancy applying, the deadline for return of applications is 0900 on Friday 16 November. Further details are available here.

Something to read. The Journal of Public Interest IP has just published its second issue.  Its theme? "Food, Climate Change and Intellectual Property: Defining the Issue".  Green patents, Golden Rice and Germplasm are on the menu. The next issue promises to deliver on IP and health in developing countries. Merpel hopes IP will get a clean bill of health.

Something else to read. The Patent Lawyer Magazine is a handsome new title, a copy of which has fallen into this Kat's hands and which looks as though it has the potential to grow into something useful.  Issue two is pictured on the right.  With the slogan "Global reach, local knowledge", the mag clearly plans to fulfill that potential.  You can reach The Patent Lawyer Magazine by clicking its homepage here, or by hoping its publishers will send you an inspection copy.  This Kat is pleased to say that a small piece by him can be found somewhere towards the rear of it, though he would have been a little more pleased if its editorial team had not chosen to misspell his surname ... twice.