Monday miscellany

Stornoway Black Pudding,
as viewed from the inside
One of the more obscure, if intriguing, pieces of European Union legislation to cross the IPKat's line of vision in the past few days has been the splendidly-named Commission Implementing Regulation (EU) No 423/2013 of 7 May 2013 entering a name in the register of protected designations of origin and protected geographical indications [Stornoway Black Pudding (PGI)].  The name of this pudding may not trip off the tongue of the average reader; indeed, many might prefer to keep well away from this primeval mixture of oatmeal, suet and blood. However, it has its own Wikipedia entry and has been described as the best sausage made in the United Kingdom. If you want to make it yourself, here are some helpful hints.  This Kat tries very hard not to be judgmental about these things, but over the years he has noticed a very large number of registrations in the European Union of protected geographical indications and protected designations of origin -- these designations being in many cases highly descriptive and often for products which, unlike the obvious and famous ones like PARMA, STILTON or CHAMPAGNE, seem to be, if he may say so without being rude, a trifle obscure.  What he'd like to know is how many of these recently-registered names have ever, even in the days when no such protection was available in its current form, actually been infringed. Is anyone keeping data? Are potential infringers frightened off by GI protection, or was there little incentive to them to infringe in the first place? 

Good news from the IPKat's friends at IP Draughts. This lovely IP transaction-focused weblog has now passed the milestone of 100,000 viewings. The blog's mastermind, the excellent Mark Anderson, is celebrating by looking to appoint an IT/IP lawyer, probably 2-3 years of post-qualification experience. If you feel that you are that person, contact Mark at Anderson Law LLP. You can find his contact details here.

Fresh from Dallas, where he gave a jolly good account of himself at one of the International Trademark Association's Scholarship sessions, Martin Husovec has put his draft paper "In Rem Injunctions: Case of Website Blocking" on SSRN so that you can comment on it (you can access it here).  According to the abstract:
"The paper discusses a concept of protection of the intellectual property rights by so called 'in rem injunctions' (actio in rem negatoria), i.e. tort-law-independent system of injunctive protection of absolute rights. One type of such injunctions, website blocking, is currently appearing in a spotlight around various European jurisdictions as a consequence of the implementation of Art. 8(3) of the Information Society Directive and Art. 11 of the Enforcement Directive. Website blocking injunctions are in this paper used only as a plastic and perhaps also canonical example of the paradigmatic shift we are facing. The author of this paper maintains that the theoretical framework for these injunctions is not in the tort-law, but in an old Roman law concept of so called 'in rem actions'. Thus the term in rem injunctions is coined to describe this concept. Besides the theoretical foundations, the paper explains how this system fits into the private law regulation of negative externalities of on-line technology and also what are expected dangers of derailing injunctions from the tracks of the tort law. The important question of the justification of an extension of the intellectual property entitlements by in rem injunctions however, which is author's PhD project, is left out from the paper".
If you'd like to email Martin with your comments, or just to have a good argument with him -- as some of the folk at INTA did -- you can contact him here.  Once again, a big thank-you to Francis Davey, Marks & Clerk, Mike Mireles and the anonymous donor in memory of David Latham, for their generosity in helping Martin attend the INTA Meeting, in which he was a resounding hit.

 The Federation Against Software Theft (FAST) described last week's Queen’s Speech, outlining the forthcoming legislative programme of the United Kingdom Parliament, as a “missed opportunity” for the software industry, according to a media release. According to Alex Hilton, FAST's CEO, last week's  announcement of a new bill for intellectual property could have brought in much-needed improvements in enforcement operations against intransigent IP infringers. Couching his disappointment in suitably gentlemanly terms, he said:
“While it is fair to say that the IP framework in the UK is one of the best in the world, enforcing the law is an area that needs improvement. We had hoped that this would have been reflected in Her Majesty’s most gracious speech ...” 
Queen Elizabeth II: do her
ministers care tuppence for
the software sector?
FAST has been calling for change in three areas as a priority: (i) implementation of Article 4 of the IP Enforcement Directive 2004/48 to enable FAST to act on behalf of its members [while the Directive is now part of UK law, only "intellectual property collective rights-management bodies which are regularly recognised as having a right to represent holders of intellectual property rights, in so far as permitted by and in accordance with the provisions of the applicable law" -- whatever that means -- can sue on behalf of rights-holders]; (ii) raise the likelihood that infringers will face stiffer damages penalties to deter the use of pirated software [curiously, the only mention of 'deterrent' in the Enforcement Directive relates to publicising court awards: see Recital 27] and (iii) making company directors more likely to be personally accountable for illegal software installations used by the business [hold on, says Merpel, you'll be suggesting next that company directors are expected to know something about what their companies are actually doing!]. This Kat finds it ironical that the software industry, which has provided so many of the means by which piracy and infringement are achieved by others, is itself plagued by the same ailment.

Last week the IPKat posted this piece about trade mark bullies.  In this piece he returned to the story of the much-bullied Gus and Inez Bodur, whose plucky defence of their trade marks has cost them dearly.  Following that post he received an email from the Bodurs, who wrote:
"Thank you for keeping everyone informed on our dispute and we really appreciate your kind words. You are right, legal aid for small businesses probably wouldn't stop the bullies and it could still be dragged on for years. Intra Presse kept saying they wanted to negotiate over the years, but this never happened. I think it would really help if the parties could get together and try and work things out, so it doesn't go on for years to come. It's such a shame the INTA [seesion on trade mark bullying] was not busy, we would definitely have got up and spoken if we had been there". 
For academics and conference-goers, trade mark bullying is simply a subject of professional or theoretical interest, part of the social psychology of commercial behaviour in the brand space.  But it's important to remember that every act of bullying has a human being at each end of it. How big brand owners behave is not just 'corporate activity', it's rank bad behaviour on the part of someone who should know better -- and anyone who can recall the pain of being bullied in the school playground will understand that the spectators who watch and do nothing when someone is bullied are almost as culpable for their failure to object as are those who do the bullying.
Monday miscellany Monday miscellany Reviewed by Jeremy on Monday, May 13, 2013 Rating: 5

1 comment:

  1. Of course the real issue for the big brand owner comes when the little guy has only one, or limited, tracks of income and you are looking to shut that down.

    When that is the case you tend to find that the other side fights on far longer than you might ever expect - it really is "bet the ranch" time.

    It's such a shame that there is no way of getting back some of the lost income - I suspect that they have lost out substantially through not being able to use the brand more extensively. What will be the value of the marks EVEN IF they win


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