Wednesday whimsies

Please spare a thought for the family and friends of Johan Nortje, a senior South African customs investigator who, having enjoyed considerable success in the fight against the tidal wave of counterfeits, has been murdered amid fears that the gangs who smuggle unlawful goods into the country are targeting enforcement officers -- or at least the ones who are (i) effective and (ii) don't accept bribes. Next time anyone starts telling you that IP infringement is just an economic crime and doesn't really hurt anyone, you can remind them that the name of Johan Nortje has been added to the list of human fatalities, along with those unnamed souls who are poisoned by fake medications or malnourished through worthless infant formula or maimed through accidents resulting from the malfunction of counterfeit mechanical parts.  For further comment and links, see Afro-IP here.

The future for Africa? Trained penguins on border
patrol monitor likely importations of fake goods

Never mind infringement in Africa, bring on the Flaming Penguins!  While on the subject of Africa, followers of tytoc collie on Twitter may have noted his caustic comments, following the observation of Aurelia Schultz that the Africa Session has been dropped from the program of the International Trademark Association (INTA) annual meeting.  The Kat pointed out that there remains one solitary, miserable allusion to Africa.on the coming program: at the Grand Finale, held, at the California Academy of Sciences, participants will be able to enjoy the antics of a colony of African penguins [recipe for Flaming Penguin Kabob here].  Sadly these are not  Afro-IP lead blogger Darren Olivier has issued this rallying call to anyone prepared to help get some sort of Africa meeting together.  Please help if you can!

[Not a rant against INTA but an offer!] Oh, and here's a message for INTA: the Kat knows that you are a large organisation with a thousand and one things to do and that it's impossible to please everyone; he also knows how difficult it can be to put together a cogent programme for an event like this, with good speakers and attractive topic -- but just know this: the blogging community is here to help you.  Afro-IP, tytoc collie and many other blogs are written by INTA members and people who support and publicise your programmes.  We don't want to take over your show; that's your job and you are answerable to your members' interests.  But we can help you do yours, by spreading the word, by making suggestions and by helping you fill in your gaps.  Just let us know how we can help for the future and we will.

Service without a smile?
Or no service at all ...

WIPO and THAT website.  While the world waits with bated breath for the abatement of the dreaded wipd.biz site, a sudden thought has struck tytoc collie.  Several legitimate organisations in the IP family, including some valuable services like the UK's Intellectual Property Office, have seen their websites rendered totally inoperable by distributed denial of service attacks (see here for explanation; click here and scroll down to "Mother of Parliaments, home of talking furniture" for more on the attack on the IPO). However, no-one ever seems to attack the bad guys and blot their websites out -- not that this is something that a body such as WIPO could ever contemplate.

This left the Kat wondering this: (i) in what circumstances, if any, is it lawful to "take out" a website which is itself unlawful and where there is no countervailing free speech issue?  (ii) In the event that a denial of service attack is held to be unlawful, what remedies and/or quantum of damages might the victim WIPD be able to secure, particularly regarding the fact that its means of doing business is itself unlawful?  Do tell!

TM protection in paradise: Pitcairn Island

Brandstrike’s Guide to Trademark Registration in European Dependent Territories, which tytoc collie warned you to expect soon three months ago, is now available: you can read it here.  It took longer to prepare than had been predicted. Merpel assumed that this was because of the need to visit the European Dependent Territories themselves, and she was ready to offer her services in inspecting the provision made for trade marks in such delectable destinations as Bonaire, Saba and Sint Eustatius, the Pitcairn, Henderson, Ducie and Oeno Islands, Martinique and Guadaloupe. However, as Damian Croker explains:

"The most time-consuming issue was trying to get to the bottom of trade mark registration in the Sovereign Base Areas (SBAs) in Cyprus [tytoc collie posted on this problem here, in "Akritiri and Dhekalia: IP Curiosities"]. The SBAs issued an ordinance (Delegation of Functions to the Republic Ordinance) stating that the Republic of Cyprus are responsible for taking care of trade mark registrations for the SBAs. Unfortunately, nobody in the SBAs seems to have discussed this with the Republic of Cyprus Intellectual Property Office. The Cyprus IPO does not accept that it is responsible and only knew about the ordinance when I sent it to them!

After a very frustrating period with both sides unwilling to engage in trying to resolve this impasse the Cyprus IPO informed me that they were going to send the matter to the Attorney General for an opinion. Hopefully this matter will be resolved for the next edition in six months time. It would be an excellent coup for the guide if it was instrumental in a new trade mark procedure being put in place but I am not holding my breath. The UK IPO has asked to be kept informed".

Damian welcomes all comments, which will help him prepare the next edition.  You can email him here.

There are just two more days to vote before the polls closes on what should be the standard term used for abbreviating the name of the senior court within the Court of Justice of the European Union.  "ECJ" is well ahead of "CJEU" at present, with the other two options lagging far behind.  The number of votes cast is fairly low, which means that a rush of late voters can easily affect the current trend and indeed reverse it.  The Background to the poll is that several contributors to the Journal of Intellectual Property Law and Practice (JIPLP) have expressed their personal reservations about retaining "ECJ" and, in recent months, more than half have opted not to do so.  IPKat team member Jeremy would be delighted to hear from editors of other English-language IP publications as to whether they have had similar experiences and as to what their own feelings are.  Anyway, for a full explanation of the issues, click here.  To vote, visit the side bar here.


The Princess and the Personal Name: more comments.  Within the past month tytoc collie posted some fairly robust thoughts on a Court of Justice of the European Union ruling on a person's entitlement to be registered under a name which, though lawful in some EU countries, might be unlawful in others -- including the country of her citizenship (see post here and further comment here). Some further comments have been sent in, for which the Kat is grateful.  The first is from his old friend and linguistic scholar George R F Souter (Lammi & Partners), who observes:

Katarina, Princess of Finland 1581-3

"You asked for some thoughts on “choice of name and its interface with (i) regular IP and (ii) rights of privacy/publicity”. In Finland, the choice of a name is subject to the Names Act (Nimilaki), administered by the Population Register Centre (Väestörekisterikeskus), which operates under the Ministry of Finance. Essentially, everyone must have a surname and at least one forename (the maximum being three). For the Finnish-born, there are some restrictions as to what names are acceptable. For foreigners who become Finnish citizens and wish to change their originally registered names in their countries of origin, the names chosen must, in principal, be “assimilable” in Finland. Every resident in Finland is recorded on the Population Register. 

There are IP consequences attached to a name. Section 3 of the Trade Marks Act provides, inter alia, that “The name … of another may not be included in a trade mark”. In connection with an application for a Finnish national trade mark registration, or a Madrid Protocol extension to Finland, the Finnish Surname Register (a subset of the Population Register) is searched along with the Trade Marks Register, and the Trade Register (which contains the names of all trading entities in the country), and a conflicting surname can act as an absolute bar to registration or protection.. 

The protection given to surnames by the current interpretation of section 3 of the Trade Marks Act is extremely wide, covering all classes, without the need for the owner of a name deemed conflicting to demonstrate any commercial interest in trading in the goods or services involved. The right of privacy in a name is protected by the Population Register Centre. 

I believe that I am the only person currently residing in Finland with the surname Souter. A search of the Finnish Surname Register gave the answer that the number of people resident in Finland with the surname Souter is “less than five”, together with the legend. “For reasons of protection of privacy, the service will not show the exact number of holders of certain surnames if they are uncommon”.

Thanks, George, for this really helpful information.  Gratitude is also due to another old Kat-friend, Howard Johnson (Part-time Senior Teaching Fellow Durham University), who adds

"I agree with the anonymous contributor - again (while personally being a monarchist and a lover of titles, though not possessing one of my own) I think it is important to demarcate carefully between family and personal name issues and commercial mark exploitation.  As ever this seems to be jurisdictional creep on the part of the ECJ.  I would disagree that the EU is merely a commercial union it long ceased to be that in any real sense of the term. Hhowever on this issue I think that I would apply subsidiarity and leave it to the relevant laws of Austria and Germany, supplemented no doubt by appropriate conflict laws rules, to decide this issue. Whether the lady is entitled to be regarded as real princess, and what order of nobility and creation it is of, one thinks of Proust and arguments about Pre-revolution legitimist, Napoleonic and post 1830- titles in France - it will afford much innocent amusement to some at least".