Monday miscellany

Final reminder: this coming Thursday is the day of CLT's "Intellectual Property and the Digital Entertainment Industry" conference. If you've been vacillating about whether to register, be brave -- take the plunge!  Click here for further details and registration.

POISONOUS DIVISIONALS as a brand: would you believe it? The IPKat and Merpel have abandoned any pretence at being surprised at the huge amount of attention that their readers have devoted to Poisonous Divisionals [see eg recent posts here, here and here, together with copious comments from readers].  They are nonetheless surprised that UK-based intellectual property practice Avidity IP ("Satisfaction is not enough") should have gone to the trouble of registering this toxic term back in 2012 together with POISONOUS DIVISIONAL as a series of UK trade marks for the following services in Class 45:

Intellectual property services; intellectual property searching, drafting, filing, prosecution, registration, opposition, cancellation, revocation, invalidation, maintenance, renewal and enforcement services; intellectual property services relating to licensing, assignment and other transactions in relation to intellectual property; recordal of transactions relating to intellectual property, changes of name and/or address of persons associated by ownership or otherwise with intellectual property and other recordable events in relation to intellectual property; patent and trademark agency services; patent and trademark attorney services; design and copyright advisory services; intellectual property paralegal and records services; intellectual property portfolio management and auditing; trade mark watching and monitoring services; intellectual property progress diary management services; legal services, legal research, arbitration, mediation, conciliation and alternative dispute resolution services; litigation and litigation support services; computer software licensing services. 

A brief look at the firm's website does not reveal that any of these services are yet being offered under the POISONOUS DIVISIONALS trade mark, though the firm still has plenty of time in which to do so. It seems an unlikely sort of brand to attract and retain the goodwill of clients, says Merpel, though this Kat is inclined to suspect that this registration might be the fruit of an enjoyable training exercise for the firm's youngsters.  

Beware the killer biscuit

Plain packaging: first cigarettes -- then chocolate biscuits? No doubt in consequence of reading this weblog, the UK's Secretary of State for Health Secretary announced a much-criticised postponement of the proposed plain packaging legislation, with a view to seeing how the Australian law works. Meanwhile, this weblog has received the following message from Ruth Orchard, Director-General of the Anti-Counterfeiting Group (ACG), which does more or less what its name suggests, with regard to the European Commission's plans for a Tobacco Packaging Directive (TPD):

ACG represents the interests of all industry sectors where counterfeiting is an issue (including tobacco), and the right to use trade marks is absolutely key. Our concern here is on a general level and is two-fold - the potential impact on legitimate IP rights, and the use of undesirable policy-making methods, unsupported by objective evidence or by a proper risk/benefit assessment.

Smoking is a threat to public health not because of too much branding, or insufficient health warnings, nor because the packaging is too attractive or certain types of cigarette could be regarded as too tasty or stylish (menthol or slims, for example, which the TPD seeks to ban).

There is already a high level of consumer awareness of the health risks of smoking - this is well-documented, and the European Commission will already know this. But knowing it will probably kill you does not counteract a smoking habit - because it is an addiction, some say worse than heroin, which no amount of packaging or other such regulation will address (banning smoking in public did some good - I gave up in 2004 because the prospect of standing in the street under an umbrella to have a fag was unappealing.)

The real factors which influence the young to take it up are also well-documented throughout Europe, and packaging is not one of them. Peer pressure, parental influence, social and cultural norms, price and access are all identified as causal factors, but packaging and product shape are never cited (see for example the UK's National Health Service study Smoking, Drinking and Drug Use Among Young People in England - 2010).

It needs concerted investment (a) in education to discourage young people from take-up and (b) in providing proper support for existing smokers to quit.

This is no way to make policy or to legislate. The risks and benefits have not been properly assessed here. More regulation and prominent health warnings obviously don't work, or smoking would already have ceased in Europe. Standardised or de-branded products are much easier to fake and this will lead to more not fewer health and safety risks, and a greater enforcement burden caused by a huge increase in criminal activity.

The Commission is also taking the opportunity to try and grab some unfettered powers for itself in the process, in 19 areas, by which it can adopt yet further public health motivated regulation without the proper oversight of the European Council and Parliament.

If adopted, these measures would:

* undermine the legal protection for IP and other fundamental rights
* interfere to an excessive extent with legitimate trade
* increase the threat to public health e.g. from counterfeiting
* further fund organised crime

If the practice of trying to legislate against IP rights in order to address unrelated health (or other) issues continues to gather momentum, other health-sensitive products, such as foodstuffs, will soon become fresh targets for such attempts - for example, alcoholic drinks are already in the frame for packaging changes in the UK. Chocolate biscuits may be next ...

So we really don't think it's a very good idea!

Around the weblogs.  Love him and/or hate him, frequently outspoken and usually opinionated IP blogger Michael Factor, author of the IP Factor, has now welcomed his 300,000th visitor. Well done, Michael!  "Gene Patents -- a Win for All" is the improbable title of this note by Sarah Matheson, Trevor Davies and Yan-Lin Lee on the jiplp weblog, on the litigation between Cancer Voices Australia and Myriad over the latter's patent for BRCA1.  Trade mark buffs wondering whether land-locked Swiss consumers generally regard KALMAR as a squid or as a sad town in Sweden (no tourist appeal or international airport) need look no further than Mark Schweizer's Class 46 post here for the answer to this poser.

One of these is the instrument of accession --- but which?

Samoa signs up for Paris.  By Paris Notification No. 219, The Director General of the World Intellectual Property Organization (WIPO) presents his compliments to the Minister for Foreign Affairs [which compliments are these, wonders Merpel, and can she have some too?] and has the honour to notify the deposit by the Government of the Independent State of Samoa, on 21 June 2013, of its instrument of accession to the Paris Convention for the Protection of Industrial Property of March 20 [as revived, amended and generally beautified].  The Paris Convention enters into force, with respect to Samoa, on 21 September 2013.