Wednesday whimsies

Fifty-Fifty, and fizzing. "When I saw the headline, I thought it was about The Simpsons", says Chris Torrero (katpat!), echoing the first thoughts of many of us non-Californians when confronted with the banner "BART Battles Brewer In Trademark Dispute Over Beer Named ‘B.A.R.T.’" The truth is less exciting -- or more exciting if you are into public transport, since the BART in question is the Bay Area Rapid Transit [and that's an acronym according to all opinions, chips in Merpel]. The other BART, or B.A.R.T. if you prefer, is a beer made by Fifty-Fifty Brewing. You can read the item on CBS SF Bay Area here, but don't anticipate massive litigation: this is something that can be sorted out over a beer or two ...

Fifty and interested, but how secure? "Security interests over IP rights" is a seminar masterminded by Katfriend and securitisation scholar Andrea Tosato and hosted by this Kat's colleagues at Olswang in their London office. It's coming up this Friday, 27 March, and has already secured its first 50 registrants. That's pretty impressive for a subject that used to be, not so long ago, whatever might be the opposite of "sexy". Andrea tells us that he's looking forward to seeing everyone on the day and that there might even be room for the occasional late registrant. Details are available here. The event is free to attend.

This too-busy Kat has been meaning for a few days to let everyone know about a report commissioned by the UK Intellectual Property Office and co-authored by Ian Goodyer and Martin Brassell (both of Inngot). With the title “Penalty Fair? A study of criminal sanctions for copyright infringement available under the Copyright, Designs and Patent Act 1988”, the document is summarised as follows:

Inngot’s report for UK IPO compared the sanctions applied to physical and online copyright infringement by studying available Ministry of Justice court data and analysing individual verdicts applied to key cases over an eight-year period. It also took in the views of industry bodies and other stakeholders who had been involved in prosecuting and defending online cases, and conducted a short survey of content creators.

The data summarised in the report indicates that current online penalties are very seldom used, but that even if this were to change, they would not provide access to appropriate and proportionate sentences for serious infringement cases.

Whilst Inngot did not find evidence that higher penalties would deter piracy, it did find that placing online copyright crime outside the category of a serious arrestable offence has had undesirable consequences. In particular, it complicates the process of investigation and prosecution, which is especially problematic when crimes span national boundaries, as is often the case.

Given the comparative ease with which copyright material can be distributed online, the report notes that safeguards may be needed to ensure that any change in the law does not inadvertently affect members of the public or organisations whose copying is not criminally motivated. Similarly, there needs to be scope for experimentation with new business models.

You can read Inngot's media release on the report here and the full 98-page report here.

Around the weblogs. As Merpel reported earlier today, there is a new blog on the block, belonging to AMBA, the European Patent Office's Association of Members of the Boards of Appeal. You can check it out here.  Over on the 1709 Blog, Ben Challis unearths the tale of a lost guitar called Lucille and how it led, as so many things do, to a US lawsuit for copyright infringement. It may be 2015, but it's less than a week since South Africa's Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill 2014 was published: Caroline Ncube explains what it's all about on Afro-IP. Finally, on the IP Finance weblog, fellow Kat Neil opens our eyes to the concept of the Coding Boot Camp and its possible impact on the IT business.


Costs of a withdrawn patent appeal in Europe: who pays? Back in January this weblog posted an item, "Belgium asks CJEU: does the Enforcement Directive allow cost-capping in IP litigation?" The case in question was Case C-57/15 United Video Properties, a reference from the Hof van beroep te Antwerpen (Belgium) for a preliminary ruling in answer to two questions:

1. Do the terms ‘reasonable and proportionate legal costs and other expenses’ in Article 14 of Directive 2004/48 ... on the enforcement of intellectual property rights ... preclude the Belgian legislation which offers courts the possibility of taking into account certain well-defined features specific to the case and which provides for a system of varying flat rates in respect of costs for the assistance of a lawyer?

2. Do the terms ‘reasonable and proportionate legal costs and other expenses’ in Article 14 ... preclude the case-law which states that the costs of a technical adviser are recoverable only in the event of fault (contractual or extra-contractual)?

Curiously, while the underlying national litigation involves deciding who has to pay the costs following the withdrawal of an appeal on an issue of infringement of a patent, the word "patent" does not appear in the questions referred.  As this IPKat said before, it's plain from the wording of the questions that the referring court contemplates a ruling that encompasses all forms of IP litigation and not merely patent suits. He added

"The CJEU ... has a track record of not giving answers that run wider than the facts of the underlying national litigation. While it is important to take account of considerations of procedural economy and of not extending a ruling beyond points on which the parties are prepared to argue, it seems immediately apparent to this Kat that there is a more important reason for answering the Antwerp court's broad questions quite narrowly. The words "reasonable and proportional legal costs" are likely to measured by quite different yardsticks in patent litigation than in cases involving trade marks, copyright or designs and the relatively short life of the patent and the impact of technological obsolescence may justify additional expenditure. While it is always annoying to have to keep returning to the CJEU to get it to amplify or fine-tune earlier rulings, that may still be more desirable than giving a broad ruling that causes subsequent injustice or inconvenience to national trial courts".

Merpel added in January (and repeats here):

"The words "reasonable and proportional legal costs" in Article 14 will be an invitation to counsel to plead before the CJEU that these concepts should also be measured against the ability to recover costs in actions that are not covered by implementation of the IP Enforcement Directive. For example, Recital 13 leaves it to Member States to choose whether to extend its provisions so as to cover actions for unfair competition, parasitic copying and the like. Will the mandatory recovery of "reasonable and proportional legal costs" in litigation involving the traditional IP rights be treated differently depending on whether that principle does, or does not, extend to other rights, she wonders -- and will a different cost-capping regime determine that, in some countries, breaches of IP licences will be treated as IP infringements rather than breaches of contract?"

All of this suggests that readers might want to make representations to their respective governments in case the latter should want to participate in the proceedings.  In the case of the UK Government, comments should be emailed to policy@ipo.gov.uk by next Tuesday 31 March 2015.  The deadline for the Government to make its submissions to the CJEU is 27 May 2015.