Monday miscellany

Personal notes: (i) IPKat team member Jeremy is going to be very thin on the ground over the next couple of weeks, on account of his holidays, followed by a trip to the Fordham IP Conference. He'll be offline quite a bit, so please go easy on the emails; (ii) a new Kat will be announced on Sunday 1 May, bringing the team up to seven again -- so watch this space ...

tytoc collie has no doubt that the Irish
could cope with a nuclear accident --
but could they handle this?

Educated and erudite readers of this weblog will no doubt be familiar with the famous banner headlines "Will the last person to leave Seattle/Britain/Ireland/Wherever please turn out the lights". This idea seems to have been the impetus behind an application to register in Ireland the word mark IRELANDS IRISH INDEPENDENCE DAY (No. 2011/00644, here), which covers the following description of services:

"I am trying to get an Independence day as a focus point to gather the nation if we should have a problem like Japan or nuclear accident in England we may have to leave Ireland". 

The Irish Patents Office will be faced with an unenviable task in classifying this description. If anyone has any bright ideas for the appropriate classes or suggested amendments, we're sure they'll be appreciated! [Many thanks to the Kat's friend Niamh Hall, FRKelly, for this gem].

Considering that it was announced earlier today, the take-up for tytoc collie's Peer-to-Patent seminar on 6 June has been great. We already have over 20 people signed up. If you're thinking of attending -- don't leave it too long to respond.We look forward to having a super crowd ...


Getting ahead with the new technology, the Journal of Intellectual Property Law & Practice (JIPLP) should be able to offer its subscribers the benefits of mobile-optimised online access by the end of this coming June. You can read the details here. tytoc collie doesn't know whether other IP journals and publications already offer this, but will be happy to hear from those that do.

Monday miscellany

Frankly speaking. In these days of balance, proportionality, being fair to the losers and all sorts of softly-softly treatment of rogue litigants, it's good to see the occasional perpetual injunction flying around. Last month's order by Mr Justice Newey in The Hedgehog Golf Company Ltd v Frank Hauser [2011] EWHC 689 (Ch), in the Chancery Division for England and Wales, was one such instance. After earlier proceedings for breach of confidence in which interim injunctive relief was granted, it became apparent that Frank Hauser, a director of Hedgehog, would not well disposed towards the company if he ceased to be a director of it and that he was fully prepared to destroy it by whatever means were necessary, even if it meant assisting a party -- Masters Golf Company -- which Hedgehog was currently suing for patent infringement and also breaching the interim injunction. There's a nice little snippet of dialogue here which might just have influenced the court's decision to make injunctive relief perpetual:

"THE JUDGE: Are you willing to go as far as saying that if after you cease to be director, you want to approach manufacturers, you will not use any specialist knowledge acquired as a director of the company?
MR HAUSER: No, I am not in any way at all prepared. I think I have been harshly treated on this whole matter, and I will protect my own interests in the future as I see fit. …  As a director of the company I am prepared to do all I can, as I have always done, for the company. The case that is being prepared at the moment against the Masters Golf Company, is the Hedgehog Golf Company against the Masters Golf Company, and I will take that to the nth degree as a director of the company, and fight till I die, for that to succeed …. But if I am not a director of the company, then all that is wrong, as far as I am concerned. The whole thing changes.
…
THE JUDGE: … Just to try and create some sort of civilised order, would you be prepared to undertake not to do anything after your directorship ceases, say for a period of seven days, so that if any application or injunction is going to be made, there is not an unseemly rush, you get proper notice, you have a chance of putting in evidence, and so on. That would be procedurally helpful, but I cannot force you to do that.
MR HAUSER: No, I don't think I would. No."

Frank by name, Frank by nature, tytoc collie says.  But not perfectly Frank? ponders Merpel.

If you are at a loose end this August and fancy a pleasantly social way of polishing up your intellectual policy skills in idyllic surroundings, have you thought of attending this year's Intellectual Property Law Summer School, run by IBC Legal and now in its eleventh year? The course runs from 15 to 19 August in the lovely, leafy venue of Downing College, Cambridge. The course is targeted at "newly qualified and junior solicitors, trainee solicitors due to qualify into IP departments, junior barristers, commercial counsel, IP counsel, trade mark and patent lawyers needing a broader IP outlook, senior lawyers" and indeed anyone else who can be persuaded to part with the registration fee.  IPKat team member speaks on the first day, but the rest of the programme is perfectly respectable.  New features this year include special focuses on the internet and China patents. Details and registration can be accessed here.

Around the blogs.  tytoc collie is delighted to welcome another new boy on the blogosphere. OUP author, scholar and IP contract wizard Mark Anderson (Anderson & Co) has just gone public on IP Draughts, a blog devoted to intellectual property contracts and business law. This blog looks a sure winner: you can check it out here.  Meanwhile, PatLit has finally reached the happy stage of having secured its 800th email subscriber.  IP Finance carries another thoughtful piece by fellow Kat Neil J. Wilkof, "Premium Brands and Private Label Products: The Inflation Challenge", definitely worth a look here.

tytoc collie is aware of the new British Standard -- the BS 8538 Specification for the provision of services relating to intellectual property rights -- which purports to set out for the first time "good practice and principals [principles?] of ethical behaviour for organisations providing services to inventors".  It's just that he has been chasing too many exciting projects and just hasn't had time to chase this one too.  You can follow this link for further comment.  If anyone wants to review the Standard, this blog will be delighted to host any sensible appraisal of it.

Monday miscellany

The Kat couldn't find any 800-FLOWERS marks
on an internet search, but he did find this
delightful transatlantic mark, which carries the
none-too-common 'SM' ("service mark") sign

Last week, while the Kats joined in the global celebrations of the 15th anniversary of the Community trade mark (CTM) system, Merpel wondered how many of the CTM applications with a filing date of 1 April 1996 were still pending.  One reader has responded with the following:

"... a search in CTM Online reveals that 14,420 CTMs with filing date 1/4/1996 are currently registered. The same source, incidentally, shows that 13 CTMs filed on that date are still in opposition proceedings, 15 years later".

Another, consulting the same database on the same day, adds that there are

"... three more with status "Appeal pending". Among them [i.e. the 13 + 3] are some marks familiar to readers of law reports, such as 800-FLOWERS, GALILEO, VITALITE and BUD".

It's an ill wind that blows no-one any good, and so it is for the Copyright Clearance Center.  While Judge Denny Chin's refusal to accept the proposed Google Books Settlement may have left rights-owning organisations wailing about the money they're not going to be receiving and Google gnashing its teeth over the money it's not (yet) going to be making, the CCC is having a field day.  The Washington Post ran an editorial last week in which it called for a collective licensing organisation that could disburse royalty payments to rights holders.  In response, CCC's CEO Tracey Armstrong was able to assert its credentials as exactly that organisation.

Sectors from which cyberquatting complaints originate:
retail, banking and bio/pharma are worst affected

"Cybersquatting Hits Record Level, WIPO Center Rolls out New Services": one of these messages is bad news, the other good, but the World Intellectual Property Organization 's media machine has rolled them together here.  In short. in 2010 , trade mark holders filed 2,696 cybersquatting complaints which covered 4,370 adversely-registered domain names with the WIPO Arbitration and Mediation Center (WIPO Center) under procedures based on the Uniform Domain Name Dispute Resolution Policy (UDRP).  While this figure represents an increase of 28% over the 2009 level and of 16% over the previous record year, 2008, tytoc collie hopes that this data won't be taken at face value. The increased volume of complaints may reflect an increase in cybersquatting, it's true -- but they may equally reflect greater confidence in WIPO's dispute resolution services or more effective detection and therefore an increasing awareness of typosquatters and other off-centre cyber-foes on the part of trade mark owners themselves.  Be that as it may, "Parties took advantage of user-friendly online facilities such as the WIPO-initiated paperless eUDRP, the Legal Index of WIPO UDRP Decisions, and the Overview of WIPO Panel Views on Selected UDRP Questions (WIPO Overview) to assist their case preparation and submission".

tytoc collie and Merpel thank some very enthusiastic readers for sending them a link to "The Google Broccoli Kitten Settlement", which they also thought was quite cute. The Kats also take this opportunity to remind all readers that this is a weblog on intellectual property which is authored by Kats, not a weblog on felines which is written by intellectual property lawyers.

Around the blogs.  If you've ever wondered how much (or how little) use has been made of the Community trade mark system by African countries, Kingsley Egbuonu has put together some data, based mainly on the ECOWAS countries. which you can find on Afro-IP here.  Two little gems on the jiplp weblog are this note by Pessi Honkasalo on a recent Finnish ruling on the parallel importation of repackaged pharma products and, with Easter coming soon, fellow Kat Birgit's analysis of the current state of registrability of chocolate animal shapes in "The chocolate menagerie: the General Court decides on bunny, reindeer and mouse shapes", here.  Troubled by copyright moral rights issues involving tattoos? If so, you're not alone. Followers of the 1709 Blog have been advising one troubled reader here.


tytoc collie thanks his friend Chris Torrero for this link to "Small businesses need to do more to protect their ideas", more research from the UK's Intellectual Property Office.  This claims that "only 15 percent of small companies have ever sought advice on safeguarding their ideas. Only 11 percent of firms overall assign responsibility for managing intellectual property (IP) rights. This is compared to 43 per cent of larger companies, meaning that smaller enterprises risk missing out on valuable income from their creativity".  More interestingly,

"This is the second awareness survey commissioned by the IPO. It involved 20,000 businesses of all sizes and from all industry sectors across the UK, and aimed to find out their level of awareness about intellectual property including trade marks, patents, copyright and designs".

tytoc collie is too busy answering readers' emails to have a go at this, but he feels that someone needs to go through the research findings (60 pages, here) and put them into some sort of perspective. After all, "20,000 businesses of all sizes and from all industry sectors" must include a large number of businesses that either have no meaningful IP at all, or none that's worth worrying about.  Any volunteers to write a critique? Just email tytoc collie here and let him know.

Monday miscellany

Around the blogs 1. While last week's rejection of the Google Settlement by Judge Denny Chin received plenty of airing (see IPKat here, 1709 Blog here), the Chet Baker Class Action in Canada is worth taking a look it. tytoc collie's friend Howard Knopf explains the story so far in characteristically forthright fashion on Excess Copyright here.  There's also a neat Current Intelligence note by the perceptive Enrico Bonadio (City Law School, London) on the Advocate General's Opinion on what counts as "communication to the public" in the joined cases of Football Association Premier League v QC Leisure, YouTube and Karen Murphy v Media Protection Services Ltd (Joined Cases C-403/08 and C-429/08), which the Court of Justice is going to decide this summer.

Around the blogs 2. For those who want to read something truly frightening and/or depressing, there's Neil Wilkof's account on IP Finance of TiVo's plan to finance its patent litigation through convertible bonds.  Almost as threatening, if it wasn't so much fun, is Mikk Putk's IPInsiders' post here, this being his "Collection of amazing patent and trademark infographics".  Oh, and let's return briefly to the 1709 Blog:

While the United States has its Intellectual Property Enforcement Coordinator (IPEC: here, with links to earlier posts), most of Europe seems to be missing the point, assuming that the way to deal with the big anti-counterfeiting issues is for more pan-European cooperation between OHIM and national offices. It's actually cooperation and coordination at national levels which is needed, since it's at national levels that (i) counterfeiters are prosecuted, (ii) fines are levied and imprisonment ordered, (iii) procedural and substantive defences and loopholes exist and (iv) distributors and consumers buy, sell and use fakes. That's why the IKPat was greatly heartened to read this small item on the OHIM website, "Anti-counterfeiting commission for Slovak Republic", which reports that the Slovak Republic has adopted a proposal for the establishment of an inter-institutional Commission to coordinate the fight against piracy and counterfeiting. With the country's Industrial Property Office in the driving seat, the Commission, which became operational on 16 March, will steer the activities of "all the main government ministries ..., including justice and prosecution as well as finance, economy, agriculture, health, culture, interior and foreign affairs".  Just think of all those damaged egos which result from having to cooperate with other government departments rather than ruling over one's own little ministerial domain, says Merpel -- who hopes that this experiment will be closely monitored: if it shows any sign of success it might prove a handy template for other European countries (and beyond) to follow.

Add caption

Knut is dead, but long live ..?  Readers of this weblog and Class 46 will probably have had more news of the interface between polar bears and intellectual property rights than patrons of other IP weblogs. If they thought that the subject stream was going to dry up with the sad death of Knut (see obituary here), they were wrong.  On the right, or on the right of the left to be more precise, is not Mishka because he is a polar bear -- but is he an infringing one?  Those with exceptionally long memories will recall that Russian artist Viktor Chizhikov created the Mishka bear cub (above left, left) for the 1980 Summer Olympics in Moscow. Anyway, last month, during a live national television broadcast, the Russian public chose three mascots – a rabbit, a leopard and the polar bear depicted here, who is alleged by Chizhikov to infringe the earlier mascot: “It’s exactly the same as mine: the eyes, the nose, the mouth, the smile, though it’s askew. I don’t like it when people steal, the author always feels it especially painfully”.  The Sochi 2014 Organizing Committee has released a statement denying copyright infringement accusations (information kindly supplied by Petosevic, here). tytoc collie is not intimately acquainted with the Russian law, but he wonders whether any attempt by Chizhikov to sell genuine Mishkas in 2014 would be deemed an infringement of the Sochi Organizing Committee's Special All-Powerful Olympic Rights, or perhaps it would be some form of ambush marketing?   Merpel thinks it's high time that Olympic rights were brought back down to earth: no event needs greater protection than do ordinary IP owners, with all the checks and balances which IP rights contain.


... and talking of ordinary IP rights, check and balances, a fascinating glimpse into the global future of trade marks online can be seen here, in 'Trademarks and the Internet', a document prepared by the Secretariat of the World Intellectual Property Organization (WIPO) Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications which is discussing it this week. The current WIPO process (which is actually quite tame and is more directed at clarifying frameworks for resolving disputes than in actually directing how they should be resolved) has attracted the ire of Boingboing's Cory Doctorow here, which makes salutary reading for anyone who believes that a huge gulf does not exist between those who see the value of IP as a basis for protecting investment and creativity and those who don't (thank you, Mike Lynd, Mars & Clerk, for the links).

Monday miscellany

The United Kingdom's Chancellor of the Exchequer presents his budget this Wednesday 23 March, at 12.30pm.  tytoc collie will be otherwise engaged at that precise moment, but reminds readers who want to check on anything that affects intellectual property that Her Majesty's Revenue and Customs will be providing information on this page, and there is every possibility that juicy IP bits will be covered on IP Finance too.  IPKat team member Jeremy's friends at Olswang LLP have their own budget blog too -- you can find it here.

In a rare piece of good news for small businesses that face major hassles from big businesses that should behave themselves better, tytoc collie can report that international style-setters Guccio Gucci SpA have dropped their opposition to the application of GI Productions (alias Gus and Inez Bodur, of Golden Balls fame) to register as a Community trade mark a figurative trade mark containing the words GUSSY THE ICE CREAM MAN.  For some unfathomable reason, Gucci considered that this mark was either confusingly similar to its own GUCCI mark or might perchance be free-riding on its coat-tails.  Gus and Inez tell the Kat, not a little proudly, "We don't have to pay legal fees as we did it ourselves".  Well done, says tytoc collie, you're an inspiration to all those small businesses that find themselves, through no fault of their own, fighting battles that should never need to be fought in the first place.

"Innovation and commercialisation: better, smarter, faster" is the title of this year's Licensing Executives Society International meeting, which takes place in London from 5 to 8 June.  The venue is the Park Plaza Hotel, where the views are almost as stunning as the prices -- but the LESI has good news for anyone who is price-sensitive: an early-bird reduced-rate registration fee is available up to and including this Friday, 25 March.  For full details of the programme and booking arrangements, click here.

The adult entertainment world is presumably celebrating the approval by the Internet Corporation for Assigned Names and Numbers (ICANN) of the .xxx top level domain name (TLD) as the "progressive new home for adult entertainment online". The approval gives .xxx the same legal status as .com, .net, .co.uk and other TLDs. The new domain is administered by ICM Registry.  While the .xxx domain will enable porno sites and other unsavoury cyberlocations to be clearly flagged and filtered, it will also provide another raft of registrations for cyber-speculators who will be swift to spot the potential for tacking .xxx on to any number of fashion, cosmetic and leisure brands that have overplayed the sexual content of their advertising and marketing content, while likely remaining slower to detect and deal with since they often be inconveniently filtered and difficult for the brand-based businesses themselves to access.

IP function at the Junction.  An ever-so-excited IPKat has learned that "a new facility at the Welsh Assembly Government’s Llandudno Junction [population 7,000] office will help businesses and individuals in Wales become even more innovative [than ...?]", according to the Principality's Deputy Minister for Science, Innovation and Skills, Lesley Griffiths.  According to a media release last Friday,

"The Llandudno Junction PATLIB, or patent library, will provide local access to patent information and practical assistance on a variety of Intellectual Property issues, including one-to-one consultations with Intellectual Property experts. The service is part-financed by the European Union’s Convergence European Regional Development Fund. 

It is the first of a planned network across Wales and is part of the European PATLIB network.
 ...
The Llandudno Junction PATLIB will complement the support available through the existing business support programmes such as Business Innovation. It will provide access to support for the development of the next generation of products as well as identifying and commercialising IP.
Businesses and individuals will be able to use the public access computers in the office’s public area, Y Bont, to make initial patent information searches and check on trade marks, design and copyright issues. They will also be able to book on to one of the regular patent clinics held by qualified and experienced staff. The centre also holds a supply of free literature on various aspects of intellectual property".

tytoc collie thinks this is a lovely idea and gives it his blessing.  Merpel wonders what sort of metric has been established for local PATLIB initiatives, but hopes that they're not going to be judged on instant results: innovation may happen in a flash, but there's a lot of need for facilities like this both before and after the flash of creativity occurs.


Sweet & Maxwell spring offer.  tytoc collie has long argued that subscriptions to many IP periodicals are far too expensive.  Sweet & Maxwell's Spring Offer (below), with reductions of at least 30% per title, would appear to recognise that cost is a disincentive to subscribe, as well as an incentive to unsubscribe,

	THE LATEST ON INTELLECTUAL PROPERTY LAW  Ensure you are kept up to date with the ever-changing complexities of intellectual property law. Subscribe now and save at least 30% off a new 2011 subscription to the following journals: Title ISSN   Was Now    European Copyright and Design Reports 1467-6656 £578 £404 European Copyright and Design Reports: issues and bound volumes 1467-66BV £802 £560 European Intellectual Property Review 0142-0461 £1,118 £782 European Intellectual Property Review: issues and bound volumes 0142-04BV £1,443 £1,010 European Patent Office Reports 0269-0802 £909 £636 European Patent Office Reports: issues and bound volumes 0269-08BV £1,123 £786 European Trade Mark Reports  1363-4542 £998 £698 European Trade Mark Reports: issues and bound volumes  1363-45BV £1,213 £849 Fleet Street Reports  0141-9455 £1,125 £787 Fleet Street Reports: issues and bound volumes  0141-94BV £1,341 £938 Intellectual Property Quarterly  1364-906X £477 £333 Intellectual Property Quarterly: issues and bound volumes   1364-90BV £693 £485 WIPO Journal: Analysis & Debate Global IP Issues   2041-2029 £44 £30
	ORDER NOW To take advantage of this offer please quote the reference number 0631805A when ordering. Place your order by the following means: Contact your Sweet & Maxwell Account Manager Call 0845 600 9355 (UK) Email sweetandmaxwell.orders@thomson.com  This offer is not available on the Sweet & Maxwell website.

TERMS OF OFFER Please note: this offer is only valid on selected new journal subscription orders placed on or before 30th April 2011.

tytoc collie can't resist pointing out that not all journals have a deterrent pricing policy: his own beloved Journal of Intellectual Property Law & Practice (JIPLP) carries an annual subscription of just £582 for the print and online subscriptions combined -- and that's not much more than half the discounted cost of the European Intellectual Property Review. If journal articles are to be of value to readers and authors alike, they deserve a wide distribution. High pricing discourages this. Sweet & Maxwell's offer should be welcomed -- but it doesn't ease the burden of renewal next year.

Monday miscellany

Towards the end of December tytoc collie reported on a curious case from Nigeria in which a court had to decide whether to grant interim injunctive relief in a patent infringement action involving voting machines, where the effect of granting an injunction might well have been to prevent the holding of national elections. The court did grant interim injunctive relief, but the injunction has since been lifted. Writing for Afro-IP, Kingsley Egbuonu takes up the story here.

With Hercule Poirot,
who needs a saisie?

Have you ever had problems grasping saisie-contrefaçon? If so, be assured that even those suave continentals from Belgium and France, imbued with a rich civil law tradition, can apply this discovery procedure in different ways -- with interesting results.  Kristof Neefs (Altius, Brussels) explains that the Belgians get it right and the French get it wrong: "The French Cour de Cassation has ruled in Sandoz/Daiichi Sankyo that a so-called saisie-contrefaçon, a discovery procedure for intellectual property holders, cannot be awarded after the patent has expired, even when the petitioner seeks evidence of acts that allegedly occurred during the patent's term. This judgment is at odds with case law on saisie-contrefaçon in Belgium and it is discriminatory. Furthermore, it appears it cannot be reconciled with Directive 2004/48 on the enforcement of intellectual property rights".  For further analysis, read on.

IP Film Festival: not Cannes but Leeds.  Last year a series of videos -- part of the White Rose IPBio Project -- was filmed at the University of Leeds, up in the southern part of the north-east of England, as part of the "Intellectual Property and the Biosciences" symposium. All the videos are open access to stream or download, together with a number of papers. There is an all-star cast, though Colin Firth, Nicole Kidman etc never quite made the list. Berris Charnley (Centre for History and Philosophy of Science, University of Leeds) tells tytoc collie that you can help yourself to all these goodies here.  A cultured Kat, tytoc collie explains that "White Rose" is an allusion to the symbol of Yorkshire, the county in which Leeds is situated.  Merpel's not so sure; she thinks the White Rose is the name of a fairly congenial pub.

Some Modest Proposals 4.0. A Conference, Pouring Academic Ideas into Legislative Bottles, is being run in New York by Cardozo Law School's Intellectual Property and Information Program. This event invites academics known for advocating thoughtful ways to improve IP, technology, and information law to present ideas from their writing in the form of actual statutory, regulatory, or treaty language. Each proposal receives both scholarly and political commentary in a free-wheeling discussion among professors, current and former Capitol Hill staff, administration officials, and Washington activists. The forthcoming round on Friday 8 April, Modest Proposals 4.0, will have a set of copyright, patent, trade mark, and information law proposals. You can email the IP Program here for more information.

Magnetic appeal. tytoc collie learns from his friend Brian Cordery (Bristows) that the Supreme Court has granted permission to appeal in Schlumberger v Electromagnetic Services (noted by tytoc collie here).  The main issues here relate to a patent for the location of undersea oil and gas and ask (i) is the composition of the skilled team the same for all issues (e.g. obviousness and insufficiency) and (ii) how much weight should be placed on so-called "secondary evidence" of inventive step?  If you are planning your holidays and don't want to be away at the time, the hearing is likely to be at the end of November 2011.  Predicts Brian, "we should have a decision just before or just after the beginning of 2012".

tytoc collie's friend, IP practitioner and fellow blogger Peter Groves is very excited that his IP Dictionary has now been published by Edward Elgar Publishing.  To this end, he writes: "l give a bottle of Champagne to the first barrister (or other advocate - but not a judge) to secure for it a mention in a judgment of a court of competent jurisdiction (not just in England and Wales) which is published online. Not a tribunal, a hearing in the IPO or anything like that. Of course, professional ethics surely dictate that to refer to it in court merely with an eye to a prize would be improper. The judge will act as a filter, of course, so if it is cited one can assume the citation is valid and objective - the gift of the bottle will be a token of my appreciation, not a prize. The quality of the Champagne will be entirely dependent on how well, in my absolute discretion, sales of the book are going".  Merpel cheekily offers an additional bottle of wine to the first qualifying person to cite Peter's Dictionary under the terms stipulated above and still end up on the winning side.


Airfield questions are up in the air. This Thursday sees the Court of Justice of the European Union receive the Advocate General's Opinion in Case C-431/09 Airfield NV and Canal Digitaal BV v Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (Sabam), a reference for a preliminary ruling from the Hof van Beroep te Brussel (Belgium), lodged on 2 November 2009.   Just a reminder of the questions:

Does Directive 93/83 [on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission] preclude the requirement that a supplier of digital satellite television must obtain the consent of the copyright holders in the case where a broadcasting organisation transmits its programme-carrying signals, either by a fixed link or by an encrypted satellite signal, to a supplier of digital satellite television which is independent of the broadcasting organisation, and that supplier has those signals encrypted and beamed to a satellite by a company associated with it, after which those signals are beamed down, with the consent of the broadcasting organisation, as part of a package of television programmes and therefore bundled, to the satellite television supplier's subscribers, who are able to view the programmes simultaneously and unaltered by means of a decryption card or smart card provided by the satellite television supplier?

Does Directive 93/83 preclude the requirement that a supplier of digital satellite television must obtain the consent of the copyright holders in the case where a broadcasting organisation transmits its programme-carrying signals to a satellite in accordance with the instructions of a digital television supplier which is independent of the broadcasting organisation, after which those signals are beamed down, with the consent of the broadcasting organisation, as part of a package of television programmes and therefore bundled, to the satellite television supplier's subscribers, who are able to view the programmes simultaneously and unaltered by means of a decryption card or smart card provided by the satellite television supplier?

The background to this reference is briefly noted on the 1709 Blog here.

Monday miscellany

Around the blogs. Masterminded by Christoph Roman Endell and his friends, IP Notiz looks like a promising weblog for German readers, and the Kats all wish it luck.  Meanwhile you can almost hear the corks popping as the MARQUES Class 46 weblog celebrates the acquisition of its 1,800th email subscriber.  The jiplp weblog reports that the subscription base for its associated journal, the Journal of Intellectual Property Law & Practice (JIPLP), rose a remarkable 11.1 per cent during 2010 -- not bad, considering the recessionary market conditions. The SPC Blog lists details of the two most recent references to the Court of Justice of the European Union involving supplementary protection certificates for patent-protected pharma products here and here.  Finally, another delightful thing to emerge from Canada -- along with this Kat's favourites Joni Mitchell, Leonard Cohen, Margaret Atwood and Mordecai Richler -- is Norman Siebrasse's new patent blog, Sufficient Description.  The Kat has seen enough here to convince him that this is a contribution of genuine scholarship and insight and he hopes that, like the famous folk listed earlier, Norman will attract and retain a loyal following beyond Canada's ample borders.

Lassi Jyrkkiö was first to break the news to tytoc collie that lawyers for US pop icon Lady Gaga have threatened legal proceedings against the makers of breast milk ice cream named "Baby Gaga".  It is reported that the lawyers have given the manufacturers, London restaurant The Icecreamists Limited, until 1600 GMT on Wednesday to change the name if they wish to avoid proceedings for trade mark infringement and passing off".  In a letter no doubt inspired by the phraseology of the Court of Justice of the European Union in L'Oréal v Bellure (see post here and earlier posts from tytoc collie), the letter from law firm Mishcon de Reya accuses The Icecreamists of "taking unfair advantage of, and riding on the coattails of" Lady Gaga's trade marks in a manner that is "deliberately provocative and, to many people, nausea-inducing".  The ice cream, said to be produced milk expressed by 15 women who replied to an advertisement posted on an online mothers' forum, has now been seized for health and safety checks.  Merpel says, noting some of Lady Gaga's dance routines on YouTube, wouldn't milkshakes be more appropriate?  tytoc collie says, here's Pravda's take on the dispute.

tytoc collie is happy to hear that, in the wake of his piece "Patent law and the workshop ethic" (here), bookings for such a challenging event have been buoyant. If you enjoy a good intellectual tussle with your topic, then this programme on Patent Validity and Infringement, coming up in London on 14 April, may just be for you.

Always on the look-out for cryptic clues contained in logos, this Kat thought he was really quite an expert.  He even spotted the hidden bear in the Toblerone logo. But now he must concede that pride of place goes to the Iranian government, which has identified the word 'Zion' (or possibly 'Zoin') in the logo for the 2012 London Olympics (left).  According to the BBC report, there is some bafflement at the British end: "An IOC official confirmed that the Iranian letter had been received but said: "The London 2012 logo represents the figure 2012, nothing else"". This is news to Merpel, who didn't even think it represented the figure 2012.


A blog with a difference, and one which the Kat would love to give more support to if only time permitted, is the Free Legal Web blog, which is part of a far wider vision of Nick Holmes.  The Free Legal Web movement seeks to help make law as easily, freely and publicly accessible as it should have already been a decade ago, and as intelligible as it should have been a hundred years ago.  This applies not just to IP law but to all law. tytoc collie wishes it every success.

More Monday Miscellany

Sam Cameron explains the basics
of brand extension to the Prime Minister

Further to Mary Ellen Field's post today ("The system's fine, but where's the money?", here), and in the context of the UK government's familiarity with and understanding of intellectual property issues, Mary Ellen adds in a comment beneath her piece "... We should not forget that the PM sleeps with a branding expert. Sam Cameron was creative director at that classic British Brand long before he was an MP. She has totally revitalised a tired brand and taken it international".  All credit to Sam Cameron, but Merpel has only this to add: while it's commendable that the PM sleeps with a branding expect, she's more concerned about who he spends his waking hours with: however pleasurable branding expertise may be, Merpel doubts that it is sexually transmitted.

This coming Wednesday, 2 March, at the coffee-friendly hour of 11am, tytoc collie's excellent and scholarly friend Tanya Aplin (Kings College London) is speaking at Brunel University.  Her oration will be on the topic of  “the continuing dilemma of database protection”. Attendance at this event is free and more information concerning it can be found here.



WIPO (the World Intellectual Property Organization) has now made available some pages to stir the spirits of those who intend to celebrate World IP Day on 26 April 2011 -- and indeed all week, if need be.  The IP Outreach portal is here; this year's theme ("Designing the future") is featured here and a roll-call of posters and fun-and-games from previous years is here.

From Stephan Weber (Legal Counsel, EMEA - IHS Global Limited) comes this plaintive missive: "I have today received another (rather official-looking) scam letter alerting me that one of our trade marks is about to expire and offering assistance. This letter is from the European Trademark Organisation S.A.. I would be happy to forward you a copy of the letter if that is helpful. Do you know of any database where such scams are recorded or would you maybe be interested in setting up such a database?" The MARQUES Class 46 weblog is now doing just this, asking people for details of databases at national level that complement WIPO's own database here.  If you have details of such databases, please let Class 46 know (several useful links have already been received and will be published shortly). All information collated will be shared!

tytoc collie himself received a grand little letter from the Domain Renewal Group this morning, kindly reminding him that his domain names are coming up for renewal and kindly offering to do the job for him, for a consideration.  A brief visit to his friendly search engine reveals that a lot of people have mistakenly assumed that Domain Renewal Group had some official sanction or role, and were somewhat unpleased to find themselves parting with money which, all things considered, they'd rather spend on other things.

In the lovely city of Turin (or Torino, if you love the beautiful name by which Italians call it) there's a fascinating conference coming up on 11 March under the title "Copyright or the right to copy?" (details are available in full on Art & Artifice, here).  One of the speakers is HHH (Hogarth head honcho) Alastair Wilson QC, who will be tackling "Reproduction of Works of Art in the UK".  Says Alastair:

"The essentials of copyright protection have not changed hugely over the past two hundred years – but the nature of art has. 

Copyright law still has the fundamental requirements that for a work to be a copyright work it must be “original”, and to be infringed a “substantial part” of it must have been copied. 

Real problems now arise in the case of conceptual art and artworks closely based on pre-existing works: questions arise as to whether some such things are copyright works at all, and even if they are, what constitutes an infringement". 

If you want to know more, you'd better check your flight times -- unless of course you live in Torino.

Finally, from the Kat's friend, trade mark and branding expert Bob Boad, comes a couple of links (here and here) to a recent news item concerning Alibaba, China's largest e-commerce group which, he observes "is popular with Western traders as a source of cheap Chinese manufactures but it is also notorious as a conduit for counterfeits and other scams".  What's interesting here is that there are actually people at the top who are being identified and expected to bear responsibility -- though not, it seems, liability, for the fraudulent activities of the company they run.  A small step in the right direction is not much to cheer at, except when you consider that it's a lot better than a large step in the wrong direction.

Monday miscellany

"Pass the Katsup"

tytoc collie is delighted to discover how many people will be sharing the TIPLO dinner with him this coming Wednesday -- though he thinks there may still be room for a few more. Young and aspiring IP-ers are reminded that there's a special price just for them -- there's also the added attraction of Lord Justice Jacob in the chair. Full details here.

Perhaps of more immediate interest to the Big League is Managing Intellectual Property magazine's first ever International Patent Forum, coming up in London on 5 and 6 April.  This event, when tytoc collie wrote about the programme here, generated an unprecedented volume of readers' comments for anything he has ever written about conferences.  While it might stretch the pockets of students, trainees and the newly-qualified, the range of topics covered and the credentials of the speakers on display will appeal to the discerning conference connoisseur.  Check out the programme and register here and you will be entitled to enjoy the 20% IPKat readers' registration discount.

If you like
the look, you'll
love the feel!

Look and feel.  tytoc collie's friend Caroline Ncube, of Cape Town University, South Africa, is currently doing some research into the law that governs the potential which the tort of passing off has to offer for protecting the look and feel of a website.  So far she has only unearthed Lifestyle Management Ltd. v Frater [2010] EWHC 3258 (TCC) (10 December 2010, noted by tytoc collie here).  She asks: "Would you know of any case law or scholarly publications on this point? Any pointers would be greatly appreciated".   Please post your suggestions as comments below, says tytoc collie, so we can all enjoy them.

World Trademark Review's latest Global Trademark Benchmarking Survey  is now open and awaits your response.  As WTR's Adam Smith explains:

"We have conducted this survey two years previously and it has always collected insightful results. The first year it revealed how the trade mark industry was coping with the economic downturn, while last year the results showed how many in-house counsel still find it hard to foster cross-company understanding for trade marks. The uniqueness of the survey is that it looks at both sides of the profession: for example, how in-house counsel believe fee structures are changing, and how much of a shift away from hourly rates external counsel are willing to admit to. 

On behalf of each survey participant, WTR will make a donation to a charity chosen by the participant – either the Susan G Komen Breast Cancer Foundation or WaterAid. The results of the survey, together with full analysis based on interviews with trademark industry insiders, will be published in Issue 31 of WTR magazine, the issue we’ll take with us to INTA in May".

To complete the in-house survey, click here. To complete the private practice survey, click here.
Article:

Before charity fatigue kicks in, let's not forget tytoc collie's friend and JIPLP contributor Bratin Roy.  Despite being of apparently sane mind, Bratin is running the London Marathon on 17 April.  Since he will no doubt be shedding many pounds, he would like you to do likewise, donating some cash for two charities that are close to his heart.  To find out more, and indeed to sponsor Bratin's worthy causes, click here.