Handbags at Dawn: Live Report 4

Katrin Vowinckel of Olswang (picture, left) was the final speaker of the day speaking on the topic of fashion brands, IP and the environment. She launched first by speaking on the evolution of sustainability. Vowinckel emphasized the increasing number of seasons for products to be put on the market, as well as the increase in the speed of production of clothing, going from 3-4 months to 12 days. These contribute to the impact of the fashion industry on the environment, such as resources taken to manufacture clothing, toxicity, waste and the social impact of the industries.

Vowinckel's incredibly knowledgeable and detailed presentation went through the issues of sustainability in the fashion industry and the ways in which labels can promote sustainability through mechanisms such as use of organic fiber, less use of resources and improvement of social standards. Vowinckel highlighted brands such as goodone and People Tree as labels that are using elements such as free trade, organic and recycled materials in their clothing lines.

Clothing brand's sustainability is also being recognized and certified by organizations such as the Soil Association and Fair Trade. Jeremy suggested the prolific nature of 'environmentally friendly' products have exhausted consumers. Jeremy suggested that the fashion industry needs to band together and generate at least one type of branding for environmentally friendly products. For more information on Kathrin's detailed speech please email tytoc collie with the subject line "Environmental IP"at ipkatforever-ipblog@yahoo.co.uk.

Jeremy closed by saying that many of the issues that we looked at today are really frustrating because many of the concepts and cases are concerning industries nowhere similar to the fashion industry. Lawyers are charged with translating these cases to be applicable to the fashion industry, which can be very difficult. Another headache is that of preparing for litigation, not just in term of preparing and making good records of evidence, but even considering whether you have a good case. Designs can be so similar that it can be a swing vote to whether a design is infringing or not. Further, the majority of fashion litigation does not go to court due to the expense and the potential of one of the parties to run out of money.

It was a vibrant and dynamic conference which again shows that the fashion industry is presented with unique opportunities and challenges for IP owners, be it High Fashion or High Street.

tytoc collie would like to thank all the speakers for today's conference.

Handbags at Dawn: Live Report 3

Following a hearty lunch, or a speed-eating lunch for this Kat, one of the two David's, David Musker of Jenkins, (picture, left) opened the afternoon proceedings. This Kat is always astonished by how extensive Musker's to-hand design right knowledge is and this presentation was no exception. He opened his presentation with some impressive statistics that this Kat was unable to jot down in the brief time they were up (can anyone help?).

Before launching to his main speech, Musker highlighted that the big design case to watch was the Crocs appeal. Having lost at first two instances, Crocs are going to roll dice again and the party on the other side is bankrupt so the may fare better.

Grupo Promer v OHIM and PepsiCO (T-9/07) was the first case Musker discussed. Musker said that the process is strange because OHIM turns up and argues against you, even though they may actually agree with you. This case concerns "Pogs". It seems from this case that the concept of design freedom was constrained because it was confined to a genus of items, i.e. it was a pog so it had to look like a pog. Jeremy raised the interesting point that the shape constraints was self-imposed by the manufacturers because it does not necessarily follow that because it is a 'Pog' it has to look how pogs are normally recognized. Musker recognized this issue as being interesting and that it was particularly relevant to the fashion industry, for example, if one is making a gladiator sandel, one would be constrained in making it look like a 'gladiator sandal' normally looks, but they really not need be.

Comparing the overall impression is a difficult exercise, not least because it is the final issue the court generally determines. The take away message in this case was that the most visible surfaces are the most significant elements. Also, where there are common elements within a genus, those banal features are features that the informed user is so bored of seeing that they are no longer significant enough to be protected and are thus ignored.

Shenzhen Taiden v OHIM and Bosch (T-153/08) concerned conferencing units that sit in the middle of a desk (please don't ask this Kat to explain it any more clearly than that). It was put forward that this design was highly technical in terms of design, but Musker expressed some doubt on this. The design was registered as an international design by WIPO. The informed user was held to be "anyone who regularly attends meetings... where participants have a conference unit". The informed user in this case knows about the various units on the market, but does not have the technical knowledge about what is inside - they only have the user's knowledge of how it works. The design freedom issue was mostly a non-issue as there was wide design freedom. It was said, but not proved, that there was a design trend in this area of product. But just because there is a trend does not mean it HAS to look that way. The Court said that such a trend was irrelevant. The Court held that because there was plenty of design freedom, the two designs at issue were too similar and the design was invalid.

Beifa Group v OHIM and Schwan-Stabilo (T-148/08) concerned the shape of highlighters (picture, right - an example of a highlighter for those who are unfamiliar). The design was registered in in 2005, revoked in 2006, which was upheld on appeal in 2008, but it was then nullified by the General Court in 2010. The issue was how you treat a prior trade mark registration against a registration for a design. The analysis is that of a trade mark infringement approach. They are identical goods, so the only issue is whether the two look the same. The interesting practical point was proof of use. The design proprietor said that if this is essentially a trade mark infringement case he put the trade mark proprietor to proof as to whether the trade mark has been used for the past five years. The court held that this was acceptable and it will be likely that proof of use for registered trade marks in design right cases will be necessary in upcoming cases.

These cases are cautious reviews of the OHIM Board of Appeal, suggested David Musker. With relative low reversal rates in OHIM now through Board of Appeal to General Court, Musker suggests that these rates will continue.

Musker said the above cases seem consistent with what is coming out from the UK, legally speaking. He said that there was no reason to jump on the back of the English courts (yet, this Kat thinks). The main lesson for the fashion industry is that there is now some relatively consistent case law, but who knows what the ECJ will make of it. Designs that buck the trend will have a broader scope than a "me-too" design. A "me-too" design will not afford as much protection.

David Stone from Simmons & Simmons was up next, saying he was about to fuse Joe Cohen's speech with Muskar's to help brands implement protection of their IP before getting to the point of litigation.

Stone likes registered community design because protection is not referenced to particular goods or services and because they are "quick, cheap, and easy". There is also no examination and one can register designs within 48 hours. It is at the point of registration that the design is presumed valid by the courts. Stone says this is a great and somewhat immediate way to deter potential infringers. Validity of the design is also not dependent on use. Stone then showed the audience various examples of representations of registered designs. He suggested that photographs were not as good as line drawings in offering broad protection. Also, Stone advised, is to go for black and white drawings not color as protection will be wider.

Stone went through several excellent slides of examples of design fashion registrations. Reporting on these various illustrative elements is too tricky to reproduce here without going into pages of dicta. But, Stone emphasized that fashion brands should not forget to register labels, logos, fabric and ornamentation.

To prevent a copier from searching the register of designs with the goal of infringing a design, one can defer publication of the design for at least 30 months, which is an excellent way to prevent copying especially where where a design has a limited commercial life. Musker interrupted and said that copiers regularly name search every day to see where new designs have come up in order to infringe. He said that there are people out there, especially where you are a big fashion name, who are watching OHIM's website so suggests to defer publishing for as long as possible or publish under a different name to prevent search results coming up under the brand names. However, it as added by Stone, that you have to publish before you can commence proceedings for infringement of registered designs.

Stone went on to discuss unregistered protection. Stone emphasized that the design needs to be disclosed first in the EU and the disclosure needs to be documented. Disclosure in the EU will set the three-year period of protection running, but it will also start running a 12 month grace period. Within this 12 month you can file for EU registered design rights. Stone said that this is something to bear in mind for foreign companies to ensure that they register within 12 months of disclosure. As Joe Cohen mentioned earlier, it is important to keep a record of the design and when it was launched. There needs to be good sales records and product orders and accurate date stamps for the disclosure of the design. These records may be important if a case ever goes to trial.

Burberry Ltd v Creaciones Camal in 2006 which had to do with a similar tartan print as Burberry's. Stone also cited Louis Vuitton and Calvin Klein v Bouzekri in 2007 which related to the bright multicolor LV signet print which was copied in colour and style but instead of LV there was a CK. The copy was invalidated due to LV and CK's prior rights. However, this ruling was questioned regarding the mosaicking of these two prior rights.

Ortiz v Camm-Way in 2008 was case concerning an obscure part of the section which prevented the invalidation of the use as herald or a city name. OHIM said that only hte city could bring such a claim

Karen Millen Ltd v Dunnes Stores [2007] in the High Court of Ireland where Karen Millen's original purple low-V neck top and a striped princess cut button-down shirt was the subject of the dispute. There were two copies here which the court seemed to rely on as showing a course of conduct of copying. The court held that the informed user is "a woman with a keen sense of fashion, a good knowledge of designs of women's tops and shirts previously available to the public, alert to design and with a basic understanding of any functional or technical limitations on designs for women's tops and shirts."

J Choo v Towerstone [2008] the case where tytoc collie's friend, Jacqueline Reid, was counsel for the claimant was again trotted out as being one of the best design right cases in the UK. Stone did criticize the description of the overall impression of the bag as being something that a patent lawyer would have authored, and not the informed user.

Stone went through a few more European cases before concluding with his love of registered design rights. He explained that unregistered designs are a good back up and good for high turnover fashion items. But he warned about the UK unregistered design rights should only be used as a last resort.

Jeremy asked if the registered design system has improved the legal realm for protection of designs. Stone said this was difficult to answer because of the few decisions in this area and that the rescission has also deflated registrations and litigation. Stone suggested that it was also the individual designers, not just the large fashion houses, that benefited from the registration process.

Handbags at Dawn: Live Report 2

After a brief coffee break which saw this Kat feverishly trying to edit her first post, Michael Edenborough QC of Serle Court (picture, left) commenced his oratory on Google Adwords. He commenced by suggesting that the ECJ got it "absolutely right" in respect to some points but were 'barking mad' to other points in the recent Google Adwords case. Edenborough continued with the explanation of the mechanics and operation of Google AdWords and highlighted that the ECJ referred to Google's display of results as "natural results", which assumingly meant that the sponsored links were therefore "un-natural". The Google AdWords cases were all French cases, he explained by way of background, some of whom had certain French trade marks, owned by French companies who were suing an American company in France. No prizes for guessing what the French courts held, i.e. that Google was liable for trade mark infringement.

Edenborough QC launched into the main Google AdWords case by discussing the use of a sign in the course of trade. The ECJ defined "use in the course of trade" as use occurring in the course of commercial activity with a view of gaining an economic advantage and is not a private matter. Edenborough QC said it was a pretty good definition but questioned whether commercial activity necessarily has to be with a view to economic activity? Could you trade that in a way that was not for economic advantage, such as undercutting price or parasitic trading? The storing of keywords and organize of the display of ads is not use within the meaning of sign, the ECJ held. Edenborough agreed with this ruling because has he explained, Google is just selling an advertising sign - not as sign as used in relation to good, but as a sign as an item of commodity themselves.

The UK's section 10(4) of the Trade Mark Act 1994 illustrates what can be included as "use in the course of trade" but it was pointed out that this list is a non-exhaustive list so there could be more activities that could be classified as "use". Edenborough explained that the list in the Directive and Regulation was drawn up before the full emergence of e-commerce and advertisement on the internet. The Court was clear that they had in consideration in defining "use" that there may be future "uses" not yet contemplated by the ECJ and this definition allowed the scope for the future.

Edenborough also questioned why the ECJ was concerned with whether the relevant internet user is confused as to the origin of the goods in the cases of double identity (identical marks, identical goods). He suggested that the ECJ seemed to have introduced by the back door that double-identity is not an absolute wrong but is only wrong if there is in addition confusion as to trade origin or some other adverse affect on the other trade mark functions. Edenborough raised this because the Commission thinks the ECJ has gone wrong on this point and is in the process of challenging this and is a live issue. The ECJ ruling seems, he reiterated, to be going way from double identity being automatically actionable by itself to now double identity being actionable if confusion is present.

Edenborough then turned to the Portakabin case said that this case was interesting in regards to Article 6(1) or Section 11(2)(c) defences. The ECJ said that these defences were unlikely to avail the advertiser because it is unlikely that the advertiser could really claim not to have been aware by the ambiguity caused by the use of the sign and therefore fell foul of honest practices exception. Edenborough expanded greatly on this case but this Kat was unable to quickly jot down all of his musings.

Edenborough then touched on the InterFlora case that has yet to go anywhere yet as it is being batted back and forth from the ECJ. The questions refered to the ECJ ran to two sides of A4, single space, he was quick to point out.

Arnold LJ asked whether the use that occurs when one purchases and uses an AdWord falls within the definition of 'use'. However, Edenborough suggests that the ECJ is saying in their recent AdWords decisions that these types of uses fall within use for the purposes of e-commerce. He said he would be amazed if any of those uses would fall outside the scope. The more important point, he suggested, was in respect of trade mark function. Edenborough suggests that the ECJ is putting too many functions on a trade mark and we should really go back to the good ol' days of trade mark origin. This issue, he said, will be debated in the Interflora case.

Turning to the liability of the ISP Edenborough said that was obvious that Google's use in the AdWords case is not use. Edenborough suggested that the attack on the ISPs is yet to be formulated well and suggests that they be attacked as a joint tortfeasor with the advertiser and not as a primary tortfeasor. He suggested that without Google providing the service the advertiser could never by infringing AdWords. He believes that this is a possible line of attack and we may see this as a new round of fights heading to our courts.

Jeremy asked Michael if he could identify the winners and the losers in the fashion sector. Edenborough in barrister style said that "it is an incredibly complicated point". He went on to illustrate that although he loves cars, he does not own a Lamborghini, but you can purchase affordable imitations. (picture, left -Michael's new car) He said that the exclusiveness of the top brands does to a certain extent depend upon the fact there are a section of people that can never attain them. He said that the players in the fashion industry feed off each other, so its not clear to identify who are the winners or losers.

Next up was this Kat's colleague, Joe Cohen from Collyer Bristow, speaking on the important topic of litigation in the fashion industry. Before commencing his presentation, Cohen presented Jeremy with a counterfeit "Hello Kitty" bag. However, he was unable to give him the bag permanently because it is currently subject of an on-going case.

Cohen opened with an introduction of the issues relevant in deciding when a fashion house should commence a claim for infringement of their IP rights. Before turning to the nuts and bolts of a claim, Cohen introduced the rights that may apply to fashion items - design rights, trade marks, copyright, and passing off. Cohen emphasized the importance of fashion brands to register trade marks for their branding and emphasized the importance given to them by the earlier speech by Manny Silverman (see previous post here). He also alerted the audience to look out for trade mark use on swing-tags on garments.

Cohen explained that unlike Silverman his talk would emphasize on design rights, as protection of trade marks in the fashion industry is similar to that in most industries.

The ownership of a design is one of the fundamental building blocks of a claim and it is important for a design house to know who has design the garment and who owns the rights. Cohen explained that where the employee creates the design in the course of employment, UK law holds that the fashion house will own the design rights. He cautioned that where freelance designers and interns, who are not strictly employees for the purposes of employment law, the fashion houses must have these individuals assessing their IP rights in the design to the company. If the claimant does not own the rights, he warned, there is no claim.

But the claimant is not the only person to be concerned with. The identity of the defendant needs to be assessed as to whether it is worth the costs in taking action against a rogue trader. Small business should have policies in going against prolific infringer, but where the defendant is a large business, such as LVMH, potential claimants should consider whether you want to risk the costs of proceedings against such a giant who will fight such claims.

Cohen (picture, left) said that design litigation remains hazardous and potential claimants need to ensure that their case is nearly water-tight. Cohen then briefly touched on the requirements of design right protection - novelty, individual character, and not dictated by a garment's technical function. Cohen said the main battleground is in assessing whether a garment has individual character and this difficulty is illustrated by Autumn/Winter's trend of camel coats. Cohen then progressed through the test for design right protection: is a camel coat novel? Do they have individual character? It can be very difficult, Cohen explained, to identify the individual character of a garment that is protectable.

Cohen then cited Floyd J in Jimmy Choo v Towerstone case concerning the Ramona Jimmy Choo bag where the bag was recognized to be protected by design rights. However, this case was contrasted by the non-fashion design right case of Dyson Limited v Vax [2010] where Dyson lost the case due to the approach by Arnold J in assessing the individual character. The treatment of these cases evidenced the need, Cohen reiterated, in ensuring your case is strong.

Fashion houses can reduce costs and speed up the process of protecting their designs and commencing proceedings by employing some in-house procedures. These include collating good evidence of design drawings. He distinguished between good design drawings and bad. Although a design drawing may look better by virtue of a detailed drawing of a garment, if it does not have the date of the design being created and the name of the designer this type of drawing would be poor evidence in a claim.

Cohen continued by speaking on the important but admittedly boring pre-action protocol and civil procedure rules. He emphasized the importance of complying with the pre-action protocol and the need for a proper letter of claim to front-load the case and save on costs. Cohen also said not to try and write a letter to frighten the defendant. When you write a letter before action, he advised, you should be prepared to follow through with the claim. This is especially important in the case of unjustified threats under section 26 of RDA 1949 and section 31 of the TMA 1994. He warned that a threat's actions can be made against a claimant. The case of Best Buy v Worldwide Sales Corp [2010] was cited.

Depending on the response to the letter before action the next step could be making the claim. The first thing to consider is where to sue the defendant - England or somewhere else in Europe or the US - but also what court? One can sue in either the Patent County Court (soon to be the IP County Court) or High Court. Cohen introduced the new changes to the County Court - the savings of costs in the county court make it very attractive to potential fashion claimants to bring action here.

Cohen then quickly touched on the procedural issues of issuing a claim form, particulars of claim and the remedies achieved in an IP case. He emphasized the use of publication of judgment in fashion claims as a deterrent effect. But the main point that fashion brands should take home, Cohen emphasized, is that brands can use the new simplified procedure for border measures. These procedures are a cost-effective and simple way in detaining counterfeit garments and accessories before they enter the U.K.

Jeremy asked whether it is worth bothering to apply forwith due to the internet? Cohen said it is worth it due to the deterrent effect. Publication is provided for in PD63 para 29.4. Nicole Hirst from Withers explained that in the Cipriani case, where Withers acted for the defendant, an order for publication was ordered against the defendant, but explained that there was a lot of to-and-froing on the issue of publication on the restaurant's website and the issue of publication was somewhat fraught with issues. Jeremy believed that the publication on a claimant's website is very important. Cohen asked what happens if the court does not order publication, what can the Claimaint do? This IPKat is unsure if this question was ever fully answered.

Handbags at Dawn: Live Report 1

Chairman Jeremy opened the proceedings with the usual household announcements before introducing Manny Silverman of Silverman Associates who was charged with opening the day's activities, or as he put it a "the Warm-Up Act". Silverman suggested that since last year when he spoke at the conference, nothing has really changed for the better in the fashion industry. The main change he suggested was the impact of the internet and the growth of counterfeit of goods. IP protection, whether by opportunities or threat, highlights the need for legal protection. Silverman suggested that when companies consider expansion overseas the senior managers fail to recognize the complex legal and regulatory issues effecting them in other jurisdictions, including IP protection. (picture, left- tytoc collie sporting the latest cheetah print trend)

The UK has seen a large influx of new retailers - Anthropologie, Sting, Forever 21 - establishing retail chains in this country. However, the reality is that the fashion industry is very competitive, and as soon as these brands enter the UK they face a struggle of either sinking or swimming. There are few concepts that are truly original, Silverman suggested, and we are seeing shorter life-cycles of trends, but it is the brand the remains the constant. It is the brand, Silverman seemed to suggest, that is the lifeboat for a company and the critical factor for business survival. Unlike the transient nature of designs or designers and thus infringement of designs, brands are the constant representation of a company's character. Brands are where the value lies for a company; they say "who you are" and "what you are". Silverman suggested that the one message that needs to get across to clients and brand owners is that in the long term a well-managed and supported brand can be highly successful for hundreds of years, for example like Burberry founded in 1856.

With the internet and the increase of social-networking, fashion houses have been able to increase their brand awareness internationally. It is this the impact of the internet that has had the most incredible impact on the fashion industry by providing a ready-accessible vehicle for vendors and buyers of a plethora of brands and products. Silverman suggested that the internet affords sellers a quick and relatively inexpensive method of trading and marketing themselves to a global audience of buyers. However, warned Silverman, although sellers may be benefit from this so do counterfeiters. He indicated that this was exemplified by data that suggested that 10 years ago the border agency seized 800,000 counterfeit goods at the border. Last year this number was 10 million. Jeremy Phillips disagreed and said that these numbers need not suggest an exponential growth in counterfeit but could just be better detection.

But for those who think counterfeiting is a new phenomena, Silverman explained that it has actually been around for thousands of years. Silverman illustrated these points with historical antidotes with the sole object of showing again, that nothing is new - be it counterfeits or design. But it is the growth of e-commerce that makes the issue of counterfeits an endemic problem in the fashion industry. The growth of e-commerce's impact in the fashion industry has also changed the perception of counterfeit fashion in the public's mind. It is often, suggested Silverman, thought of as a victimless crime. However, Silverman said that it is actually a "malignant problem" affecting brands resulting in a depreciation of the brand's value and increased costs in enforcing fashion brand's rights. This cost is compounded by the difficulty in ascertaining the identity of the infringer - be it name or country of origin where the counterfeit goods are manufactured.

Silverman closed on a grave note saying that no one seems to have any answer on counterfeit and neither did he, but suggested a concerted effort by all players, including search engines, in the fashion industry to address the problem of counterfeit and e-commerce may go somewhere in addressing the issue. eBay, readers will recall from their victories in Tiffany v eBay, spends around $10 million in monitoring and combating the sale of counterfeit goods - a factor which the court seemed to take into account for not finding eBay actively promoting the sell of counterfeit products.

Rebecca Chong from the Institute of Practitioners in Advertising was next up. The first part of Chong's presentation focused on the common problems encountered by advertisers in the field of intellectual property law. The first common concern of advertisers, Chong suggested, was how to protect slogans. Slogans, by their nature, are difficult to protect by way of a copyright due generally to the lack of originality and sufficient skill, labor and judgment. The difficulty in protection is also encountered in trade mark registration due to potential descriptive nature of slogans. Chong suggested that advertisers should always check whether ads can be used via the AdSlogan database and registered trade mark searches.

Another prominent issue is the use of competitor's trade mark in ads which Chong suggested many advertisers seem to think they have "free reign" to use. Chong warned advertisers to be careful in buying competitor's trade mark keywords following the Google AdWords case. Although Google was not found liable by the ECJ, the advertiser's liability was emphasized as probable. Chong suggested that this decision would mean that brand owners could pursue advertisers directly. Chong also suggested other tools such as non-disclosure agreements for protecting advertising pitches, not using stock photographs without consent, and being cautious of parodying other advertising campaigns also be kept in mind by advertisers.

Comparative advertising, a hot tool for our country's supermarkets, can also find advertisers in hot water. Chong sped through the statutory and common law before touching on the L'Oreal v Bellure where she lingered to emphasize that this case has essentially made it more easy for an advertiser to attract liability. Chong also warned that advertisers need to be aware of celebrity's rights either by way of passing off or trade mark registration of the celebrity's name.

For a change of scenery, Chong introduced the role of the Advertising Standards Association (ASA) who administers the advertising codes, and the Committee of Advertising Practice (CAP) and Broadcast Committee of Advertising Practice (BCAP). Chong alerted us that as of March 2011, the CAP codes will include digital content including Twitter and Facebook pages. Chong emphasized Rule 3 of the CAP and BCAP regarding misleading advertising. Chong illustrated Rule 3 by a recent ASA adjudication concerning a Louis Vuitton ad showing a woman stitching a Louis Vuitton handbag. Complaints were made complaining that the ads falsely represented that the bags where handmade when they were not. The complaints were upheld. Chong emphasized that advertisers should really only make claims in ads that are easy to prove by evidence.

The very topical issue of airbrushing in the fashion and beauty industry captured the audience's interest. Chong explained that in a Girlguiding poll of 1,109 girls, 50% of those aged 16-21 consider having surgery to change their looks. Recently, Debenhams launched a ban to all airbrushing from future campaigns. The government has also suggested the use of a kitemark to alert consumers where ads have been air-brushed. However, Chong suggested it may be difficult how to define "air-brushing" and it may have a deep impact on the fashion industry. She was critical that consumers put the advertiser between a rock and a hard place in that although they do not want to be bombarded by false unattainable images of perfection, they also desire to see aspirational advertising. Chong suggests that the rule against misleading advertising actually goes somewhere in addressing the issue of airbrushing at the moment, without the need of further regulation.

Chong closed her speech with examples of ASA complaints in beauty industry. One complaint concerning the Olay Definity illumninator Definitive Illuminator modelled by Twiggy which was upheld and one regarding L'Oreal and Cheryl Cole's hair where the ad was used with extensions, which was not upheld.

A member of the audience suggested that the tort of privacy could be employed to rescue an unauthorized use of a celebrity's image in the absence of an American-style image rights. This Kat disagrees because privacy only protects the publication of private information, by way of photographs or otherwise, where the individual had a reasonable expectation of privacy. This Kat cannot think of many cases where such a photograph, unless it was Naomi Campbell-esque, could be held to be private.