Monday miscellany

Time to wake up! While the weather might still be bright and warm, the year has now passed through the blogging doldrums of July and August, when holidays, major sporting events and judicial breaks make it hard for even the best of IP bloggers (i) to dig up a good supply of bloggable material and (ii) to attract the attention of their readers. But now we welcome September when, by way of contrast, as the weather cools, the world of IP hots up.  [Merpel apologises to this blog's readers in the Southern hemisphere, for whom summer is winter and who have been entertaining both themselves and us with such fascinating gems as New Zealand's prophetic or head-in-the-sand attitude towards the patentability of computer programs. Thanks, you lot!]. Anyway, the IPKat, Merpel and all the crew are at your disposal and look forward to sharing lots of news, views and fun with you in the four months that take us to the end of the year.

After renaming the Patents County Court the
Intellectual Property Enterprise Court, we now
have a new name for the Court of Appeal
This Kat is furious that the Supreme Court has refused permission to appeal in Lumos Skincare Limited  v Sweet Squared Limited and others -- a decision that drew some growls from this weblog not that long ago.  Two differently constituted Courts of Appeal for England and Wales, within a very short period, appear to have come up with quite different approaches to how to treat an appeal in which they take issue with the trial judge's findings of fact, one case being Lumos and the other being Okotoks v Fine & Country (noted by the IPKat here).  According to the Supreme Court (UKSC 2013/0148, before a three-judge panel of Lords Neuberger, Wilson and Toulson), permission to appeal was refused "because the application does not raise an arguable point of law of general public importance which ought to be considered by the Supreme Court at this time bearing in mind that the case has already been the subject of judicial decision and reviewed on appeal" [Hmm, says Merpel. The result is that the Court of Appeal can pretty well pick and choose whether to substitute its own choice of facts for those found by the trial judge, depending on that Court's mood, the time of day or whether there is an 'r' in the month.  Fortunately this isn't a matter of general public importance ...]

Latest SCRIPTed now available.  The latest issue of online IP/IT journal SCRIPTed is now available.  You can check out its contents here. This issue has a special focus on collaborative open source projects, copyright management and licensing.  It also contains a discussion of "The European Unified Patent Court: Assessment and Implications of the Federalisation of the Patent System in Europe" by Dimitris Xenos, which makes uncomfortable reading for anyone who thinks that the European Union did its homework properly before pushing forward with its new and highly controversial patent litigation structure.

JIPLP-GRUR event.  Are you a devotee of the common law remedy of passing off? Or do you prefer the civil law delict of unfair competition?  In either case, or even if you are neutral, why not sign up to attend the third in a series of joint events hosted by the Journal of Intellectual Property Law & Practice, published by Oxford University Press, in conjunction with leading German intellectual property journal GRUR Int?  Speakers are Ben Allgrove, a partner in the London office of Baker & McKenzie LLP which is kindly hosting the event, and JIPLP editorial board member Gert Wuertenberger (Wuertenberger Kunze, Munich).  Panellists are Mr Justice Arnold, Chris Wadlow, Phillip Johnson and Birgit Clark. The date? 23 January 2014. For programme details and registration click here.

Art & Artifice event. The Art & Artifice weblog's Redbus art-and-copyright event on 24 October now has over 100 registrants.  The delights of Michael Edenborough QC's talk and the subsequent panel discussion are being augmented by the prospect of guided tours of the contemporary art exhibition of host firm Simmons & Simmons.  If you've not yet registered but propose to do so, you'll find all the necessary details here.

Will David be wearing
his new Cravath ...?
Heads and tales.  The gradually-approaching date of 17 September is looking very exciting for those members of the European intellectual property who belong to Union-ip and come together only a few times a year in order to feed: this is because that is the day on which former USPTO head David Kappos will be appearing in person at the Royal Overseas League, London, to tell the tale we all most want to hear -- the story of the future global role of IP [Says Merpel, usually one hopes the pre-dinner speaker won't have too much to say but, given his theme, it's quite likely David's audience will be hoping for a long one ...]. For further details of the event and how to register for it, just click here.

For those who ever wondered where
China is, it's the yellow bit that lies
between Bhutan and Mongolia ...
A katpat goes to the IPKat's Canadian friend Paul Jones for tipping him off with the news that the Standing Committee of the National People's Congress, China, has now voted on a third reading to adopt some proposed amendments to the country's Trade Mark Law. Explains Paul:
"Work started on this set of amendments over seven years ago. The text of the amendments as adopted is not yet available, but a notice of the adoption was posted on the website of the NPC. The Amended version of the Trade Mark Law will go into effect May 1, 2014. Some of the features are that applications to register a trade mark must be made in good faith; improved protection for well-known marks; and changes to the opposition system". 
 If you don't believe Paul, just check it out for yourself: the NPC's announcement (in Chinese) can be perused here.

Around the weblogs. IP Finance's Mike Mireles clashes with our fellow feline Neil over the worth of the World Intellectual Property Organization's (and Cornell's and INSEAD's) Global Innovation Index here.  Barbara Cookson (SOLO IP here) offers a little soliloquy on the joys of an almost-empty library.  If you've never heard the expression "lean performance" [as at least one fictional Kat is too embarrassed to confess], you can find out from Laetitia Lagarde on Class 46 here why it is that the Office for Harmonisation in the Internal Market is happy to allow registration of LEAN PERFORMANCE INDEX for goods and services in Nice Classes 9,16 and 42 but not for services in Class 35. Finally, the jiplp weblog posts a note on the results of its "What does Greek Yoghurt mean to you?" survey here.

And for the record, the IPKat confirms something that most readers who care will already know: that ICANN’s Generic Domains Division has concluded its Initial Evaluation (IE [Older readers will remember when 'IE' stood for 'Internet Explorer ...']) phase of the new generic Top-Level Domains (gTLD) programme. According to its media release,
"More than 1,700 applications have now moved to the next steps in the program.  
... Out of the 1,930 new gTLD applications submitted, a total of 1,745 applications passed Initial Evaluation, 32 have gone into Extended Evaluation, and 121 were withdrawn from the program.  
But is ICANN counting?
...  Applications that passed IE will proceed through the program based on their complexity. Some may move straight to the Transition to Delegation phase, while others may have to go through additional steps, such as dispute resolution and string contention. As another indicator of the progression of the New gTLD Program, 12 additional registry agreements have just been signed, 11 of which are the first English character TLDs. The contracts govern the registry and administration of a dozen new gTLD’s. ICANN’s new gTLD program is the result of 8-years of study, 47 public comment periods, which produced over 2,400 comments, 55 explanatory memoranda [this Kat wonders whether, if something demands the production of no fewer than 55 explanatory memoranda, it might just be a little over-complicated] and 7 versions of the new gTLD Applicant guidebook [Merpel notes with some concern that no figures have been given for the number of apoplexies, nervous breakdowns and early retirements inflicted on the brand-owning communities during this period]".
For more information. just click here.
Monday miscellany Monday miscellany Reviewed by Jeremy on Monday, September 02, 2013 Rating: 5


  1. Re Lumos Skincare Limited v Sweet Squared Limited, when it comes down to it, doesn't the Court of Appeal have the choice of carrying out a review or a rehearing as it wishes? Why tie its hands by having a Supreme Court decision on the issue? I think there's a general principle that higher Courts can decide their own procedure for themselves, and that has to have some flexibility where for example mistakes on the facts are made by a lower court.

  2. " and that has to have some flexibility where for example mistakes on the facts are made by a lower court."

    There is no court now that lacks a mechanism for dealing with mistakes of fact made below.

    I doubt that any decision is in play that would eliminate such.


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