Never too late! If you missed the IPKat last week ...

Bright and early this Monday morning comes the 23rd weekly Never Too Late round-up of the previous week's Katpost features. As usual the author is our good friend and colleague Alberto Bellan.  This is what you may have missed last week:

* VOLVO vs LOVOL: "a visual dictionary" in the consumer brain...?

Birgit writes about Cases T-524/11 and T-525/11 (both of 12 November 2014), where the General Court (GC) Freudishly considered similarity between the well-known trade mark ‘Volvo’ and the later sign ‘Lovol’ under Article 8(5) of Regulation 207/2009 on the Community Trade Mark. With the GC analysing “neuronal activation in consumers’ brains”, dare we say that trade mark law is not a science!

* Those new European patent litigation rules: a report on the Oral Hearing on the 17th draft

 

Dr Stephan Dorn (Hogan Lovells Int. LLP, Düsseldorf) is the IPKat’s special reporter from the Oral Hearing on the 17th Draft of the Rules of Procedure for the Unified Patent Court, which took place in Trier last week. That conference considered a number of issues like the Opt-Out procedure under Rule 5, the language regime before the Court (Rule 14), damages and compensation as per the new version of Rule 118, and Rule 220.2, which provides for a discretionary review of procedural orders.

* 3G standard essential patent valid and infringed: irrelevant whether Vringo is a troll

 

Former guest Kat and PatLit team member Stefano Barazza recounts Mr Justice Birss’s judgment in Vringo Infrastructure Inc v ZTE (UK) Ltd [2014] EWHC 3924 (Pat). The ruling deals with validity of a patent essential to 3G technology, disclosing a method for relocating a protocol termination point in a communication system. The patent is  ok, Birss J said, and trolls also deserve IP protection.

 

* Senior Trade Mark UBER Deluged by Phone Calls from Ride-Sharing UBER’s Customers

Before ride-sharing applications became the big deal that they are now, two Austrian sisters, Elena and Herta Kriegner, had found in NYC a design company named ‘Uber’. Having anticipated the name of the famous unprofessional-driver system brought more than a little problem to the Kriegners. That’s a classical case of ‘reverse confusion’, notes Marie-Andrée, and recent news about Uber’s approach to press freedom could add some trade mark dilution.

 

* Unrest in Eponia as staff take to the streets

Merpel takes a look at European Patent Office (EPO) employees taking to the streets to express their extreme anxiety at the state of governance of the office that will soon be responsible for administering the unitary patent system. Lots of employees’ upset, lots of comments attracted -- is there a relationship between the two?

 

* Idenix v Gilead - Patent profoundly invalid

Define ‘Arnoldian’. ‘It’s Idenix Pharmaceutical, Inc v Gilead Sciences, Inc & Others [2014] EWHC 3916 (Pat) (01 December 2014)’, Darren might answer. As he explains in this post, this deeply detailed but well indexed–case that one of the IPKat’s favourite judges delivered last week deals with a patent in the technical field of Hepatitis C  treatment. Among the significant –- but, really, very-well indexed –- number of issues, the decision delves into novelty, inventive step, insufficiency by excessive claim breadth, added matter, and claim construction in light of the influential Actavis v Eli Lilly, another Arnoldian decision that the very same judge clarifies further in this ruling. 

 

* Merpel revisits the EPO strike

Merpel again sinks her paws in the EPO strike issue. In this post, she reflects upon the strike’s side effects upon oral hearings and EPO’s operation in general, along with what are the real numbers of employees allegedly attending the strike or doing other things with their time ...

 

* Audit clauses in IP licences: how easy it is to go astray ...

Jeremy gives the floor to Nick Briggs and Kerry Russell (Shakespeares), who report on 118 Data Resource Limited v IDS Data Services Limited and others [2014] EWHC 3629 (Ch), a High Court, England and Wales, ruling of Deputy Judge David Halpern QC, in which they represented the defendants. The case concerns audit clauses in IP licences, which give the licensor the right to enter the licensee’s premises and inspect relevant documents and materials in order to ensure that the licensee is complying with specific provisions of the licence. If too broad, they may not be enforceable, Nick and Kerry explain.

 

* In suspense about the European Patent Office? You're not the only one  ...

After earlier posts on the issue here and here, Merpel returns to the EPO strike, this time recounting the tale of an EPO Board of Appeal member who had just been suspended from office and escorted from the building. Apparently the ground of suspension is alleged misconduct, and the suspension was ordered by none other than President Battistelli. Concerning, isn’t it?

* BREAKING: AG Cruz Villalón says the distribution right includes right to prevent offer for sale of a work

Advocate General (AG) Cruz Villalón returns to the copyright scene with his Opinion in Case C-516/13 Dimensione Direct Sales and Labianca, a reference for a preliminary ruling from the Bundesgerichtshof (Germany). As Eleonora explains in this post, it is all about the right of distribution within Article 4 of the InfoSoc Directive [on which see the IPKat’s note here] and, in particular, whether that right gives the power to prevent offer for sales of protected works.

* Is house of mirrors a bad reflection on a famous artist? Post-mortem moral rights in Poland

Moral rights are back on stage again as Jeremy gives the floor to Katfriend and enthusiastic young lawyer Ewa Laskowska. She writes of Tadeusz Kantor, an outstanding and original figure in 20^th century Polish art whose moral rights have been infringed, his heirs allege, due to the way in which a post-mortem exhibition of his works was organized and to the building that hosted it.

* Second Circuit Hears Argument in Authors Guild v.Google Fair Use Case

Here’s Marie-Andrée updates on the notorious Authors Guild, et al.v Google, Inc. case, whose appeal is currently pending before the Second Circuit (Judges Leval, Cabranes, and Parker heard arguments from both parties last Wednesday). As she recounts, the discussion turned around Google’s commercial nature and, by reflection, the “quintessential commercial” nature of the Google Books project in relation to the possibility to apply fair use. If the world already knows Judge Chin’s take on this point, Marie-Andrée notes that one of the Second Circuit judges has already expressed himself on the same issue in the past.

 

* Swiss cheese, calcium salt, partial priority and poisonous divisionals: an exotic feast for patent enthusiasts

This guest blogpost from Susan Keston (Patent Director, HGF Ltd) concerns Decision T0571/10 (decision date 3 June 2014 but online only on 27 November), which makes an interesting contribution to the debate on partial priority using a “swiss cheese” approach.

 

* The Alicantation of the European Patent Office

For the fourth time this week, Merpel dives into EPO politics, this time to report a plan to subsume the Boards of Appeal into the EPO management structure and having the Court of Justice of the European Union (CJEU) as an appellate court from which an appeal from decisions of the EPO Boards of Appeal would lie. Merpel has heard that the Administrative Council will discuss such a plan next week, and can’t wait to know non-EU contracting states’ reaction to the idea of the CJEU resolving their disputes. 

 

* TF1 v Dailymotion: meet third generation hosting providers

The Paris Court of Appeal delivers its decision in TF1 (and Others) v Dailymotion (and Others), another of those ISP liability cases concerning copyright infringement via video-sharing platforms. This ruling (and the analysis provided in this post, written by me) defines a new generation of hosting providers held eligible to benefit of the E-Commerce Directive safe harbour. Burden of proof regarding ownership over infringed contents and damage compensation criteria are also relevant.

 

* More end-of-year reading suggestions

A couple of weeks ago, Jeremy spotted a couple of new intellectual property books that you might want to snuggle up with. Well, here are a couple more suggestions. The first is The Principle Of National Treatment In International Economic Law Trade, Investment and Intellectual Property, edited by Katfriend Anselm Kamperman Sanders (Maastricht University, the Netherlands) for EIPIN -- the European Intellectual Property Institutes Network.  Contributors include luminaries such as Thomas Cottier and Christopher Heath, as well as the editor himself. The second is The Copyright Wars: Three Centuries of Trans-Atlantic Battle, written by Peter Baldwin (University of California), which is the first major trans-Atlantic history of copyright from its origins to today.

 

* What happened to Svensson and his friends after the CJEU decision?

‘How is Svensson, after Svensson?’, Eleonora asks Katfriend Jan Rosén (Stockholm University). In reply, Jan provides a kind update on the events that unfolded in the wake of this famous CJEU decision [here and here], along with a harsh critique of the principles on the basis of which the CJEU constructed its reasoning over hyperlinking and communication to the public.  

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PREVIOUSLY, ON NEVER TOO LATE

Never too late 22 [week ending Sunday 30 November] -- Trade conference and IPKat discount to attend | Eleonora’s copyright infringement checklist | EPO video-conference drawbacks | Bat trade marks | CJEU on essential patents in Case C-170/13 Huawei v ZTE | BGH on acronyms’ registrability | Peppa Pig and Gabriella Capra | Reference to CJEU: copyright infringements through open wi-fi | Court of Appeal for England and Wales on ‘Ideal Home’ trade mark in IPC Media Ltd v Media 10 Ltd [2014] EWCA Civ 1439 | Imitation and lookalike specialists Aldi looses in  Case T-240/13 against ‘Alifoods’ | Jeremy’s book review -- Asian IP special | Chancery Division back on Merck v Merck | Trade marks in artistic works | Treatises and indexes.

 Never too late 21 [week ending Sunday 23 November] -- EPO + SIPO = happiness? | IPEC on infringement of escort pictures and targeted public | Jeremy’s take on the IP Big Picture | Merpel on the EPO finances | AG Bot on Spanish claim against Unitary Patent | The General Court in TM cases Case T-342/12 and Joined Cases T-122/13, T-123/13 and T-77/13 | Court of Appeal for England and Wales on software patent | CJEU rules over Golden Balls v Ballon D’Or | IP on the airplanes and airport | Do TMs protect consumers or its owner?

Never too late 20 [week ending Sunday 16 November] -- More on Jeremy’s Francis Gurry Lecture "IP in Transition: desperately seeking the Big Picture"  | OHIM and trade marks on 3D and 2D animals’ devices  |  Size of patent drawings matter  |  IPKat e-mails causing problems (but we still love you)  |  Helmut Kohl’s injunction against the “The Kohl Protocols”  |  Ambiguous patent translations  |  IPEC on damages for TM infringement in IPEC’s National Guild of Removers and Storers Ltd v Statham t/a Marrubi's Removals & Storage.

Never too late 19 [week ending Sunday 9 November] -- Copyright over Kim Kardashian’s bottom  |  EPO under EU Parliament’s investigation?  |  Rights on photographs of fake social profiles  |  IPEC hears big claims  |  Spanish copyright reform  |  Court of Appeal for England and Wales’ decision in Interflora v M&S | IPEC on confusing business names in Anglian Windows Ltd v Anglian Roofline Ltd  |  Ford Denied Well-Known Trademark Protection in Russia  |  Crayola suit to prevent genericide and dilution in the US  |  Copyright: monopoly or exclusive right?  | The 17th draft of UPC Rules of Procedure.