Too many law reports

I have been looking at the Incorporated Council of Law Reporting website, as good a way to pass some time as any other ... and chatting to Charon QC this morning on the phone I recalled something that I thought I had read on a page on that site: "The almost universal view among judges in England is that too much, rather than too little, is reported."

I find this when I look at the reports pouring out of the Patents Court and elsewhere and appearing on BAILII. To make matters worse, they often run to hundreds of paragraphs these days - and you plough through them - or even just jump to the end - only to discover that there isn't anything important in them. OK, you might have picked up a few useful bits of trivia about recombinant DNA or potato separators along the way, but nuggets of law were what you really wanted. Maybe I should confine myself to reading Court of Appeal judgments in future? But a diet of nothing but Jacob LJ might be a bit too rich, albeit simultaneously enlightening and entertaining.

Domain names: a passing off and trade mark infringement case - just like old times!

Wasabi Frog Ltd v Miss Boo Ltd is an old-school passing off and trade mark infringement case to deal with a domain name problem. Just the sort of case that has hardly been seen since dispute resolution procedures were introduced, ten or so years ago. It shows that there is still room for good old-fashioned litigation, although Jane Lambert has raised the important question of whether the parties should have explored other methods of dispute resolution. It looks to me as if taking this expensive route enabled the claimant to get what it needed in very short order - the defendant's trade mark application was published in late August, and by early November they have an injunction. And of course the injunction runs in the world of bricks and mortar retailing as well as on-line, so using Nominet's DRS wouldn't have been as effective and hardly any quicker. Using the DRS (or another registrar's similar procedure, such as the UDRP) is fine for dealing with domain name registrations, but where a trade mark infringement is concerned something else is probably needed.

Trade mark case delayed by Christmas

Legal Week reports that a trade mark infringement case between Asda, the supermarket chain (owned by Wal-Mart) and Specsavers, the high street optician chain, has been delayed to allow for the fact that as a term of their appointment to Asda's panel, Pinsent Mason had to agree that lawyers working on the account would work for three days over Christmas stacking shelves.

While I am sure that the lawyers will get to know their client better as a result, I'm not sure that stacking shelves will teach them much about the business. If the report is accurate - and I do treat everything I read in the press with suspicion - it seems to me that no-one's interests are being served save those of Asda's shareholders. Junior lawyers (it doesn't seem to apply to partners) lose days over Christmas, prospective part-time workers lose the opportunity to earn some money, and Specsavers have to wait for their day in court. If Pinsent Mason's social responsibility efforts are reduced to the extent that they are obliged to give time to a client, that would be the icing on the cake.

Potato separators: better than slurry ...

Long ago, when I first discovered that area of law that had recently become known as intellectual property and found myself embroiled in issues relating to industrial designs, the arguments revolved around motor vehicles - Morris Marina exhaust pipes, Transit van panels, and even copies of the Caterham (né Lotus) 7. then along came unregistered design right, and we moved into the field of agricultural machinery - pig fenders and slurry separators.

Today the judgment of Floyd J in Grimme Landmaschinenfabrik GmbH & Co KG v Scott (t/a Scotts Potato Machinery) [2009] EWHC 2691 (Pat) has been published. The machine in question is a potato separator - preferable in so many ways to a slurry separator, although I don't suppose it's necessary to bring them to court - and there is an unregistered design right angle as well as a patent angle. UDR had in fact expired at the end of last year, but the judge found some infringements: he also found some infringements of the patent, at the same time as holding that the first claim was invalid for obviousness.

Another brick in the wall

Years ago, I felt offended by the assumption in some quarters that intellectual property rights whould have holes knocked in them to permit what might broadly be called copying. I reasoned to myself, and anyone else who would listen, that it was right that someone who had created a design or whatever else it might have been (but in my life it was usually designs) should have exclusive rights over it.

It all came about because I was working in the motor industry and my sympathies (though I should have been neutral) tended to lean towards the car manufacturers. On what basis did the then BL or Ford or any of them owe the parts makers a living? They had taken the trouble to design the cars, and create the market for replacement parts (and for original equipment components too, of course). There appeared to be a lot of potential free-riders hoping to take advantage.

Whether I was correct or not, Parliament was determined to make the spares market free - well, the government was, and perhaps Parliament went along with it, despite my working the words "fair weather umbrella" into a second reading speech I drafted for one MP friend. Consumer benefit was assumed to lie in cheap spare parts. The House of Lords had already done the damage in BL v Armstrong, I suppose, so Part III of the Copyright, Designs and Patents Act was just the icing on the cake. I don't think the change has caused the demise of the car industry - though something seems to have damaged it in the intervening years.

More recently, I have been railing against intellectual property absolutists. Today I read that Lego are off to the Court of First Instance to argue that they should be entitled to keep a four-by-two plastic brick on the CTM register. Is this another instance of absolutism, of overreaching intellectual property rights that should be trimmed back? Or is it a legitimate way to try to stop free riding?

One man's meat, as they say ... To me, Lego is Lego and should be in perpetuity. I am young enough to have played with it as a child, and whatever has come along since simply isn't the real thing to me. Any argument that lego still deserve protection for their innovation is hollow, of course: they have had fifty or more years to cover the development costs and make a healthy profit. But I do find the sight of copyists and imitators claiming to be entitled to avail themselves of someone else's brilliant idea unedifying. Is a trade mark the right way to protect something like this? Well, to my mind the issue has transcended design or copyright law (even patent law) and the product is serving a trade mark purpose. It embodies Lego's reputation, and so long as they maintain that reputation and teh shape trade mark speaks so clearly about the origin of the product, it should be protected.

IP litigation costs

It is trite to say that IP litigation is horribly expensive. In Ungar v Sugg (1892) 9 RPC 113 at 116-117 Lord Esher MR famously said:

Well, then, the moment there is a patent case one can see it before the case is opened, or called in the list. How can we see it? We can see it by a pile of books as high as this [holding up the papers] invariably, one set for each Counsel, one set for each Judge, of course, and by the voluminous shorthand notes: we know ‘Here is a patent case.’

Now, what is the result of all this? Why, that a man had better have his patent infringed, or have anything happen to him in this world, short of losing all his family by influenza, than have a dispute about a patent. His patent is swallowed up, and he is ruined. Whose fault is it? It is really not the fault of the law; it is the fault of the mode of conducting the law in a patent case. That is what causes all this mischief.

Wouldn't it be great - for lawyers whose clients have such difficulty affording IP disputes as much as for the clients themselves - if insurance were available against IP litigation costs? There are providers, but the policies do not come cheap - but a new entrant might be changing that. Alpha Insurance Facilities offer cover that is not prohibitively costly. I remain to be convinced, and it's an area I ant to learn a great deal more about.

Res judicata in OHIM?

Thanks to the Inner Temple Library's current awareness blog, and the WLR Daily (the Daily Weekly?) whose website doesn't sem to be working at present (the whole ICLR site seems to be down), I learn of a recent CFI decision in Case T-140/08 Ferrero SpA v OHIM. The Court observed that the principle of res judicata does not apply in OHIM proceedings:

In proceedings concerning the alleged invalidity of a community trade mark, departments of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) are not bound by earlier final decisions in opposition proceedings, since no force of res judicata attaches to such decisions.

Is this surprising? I don't know, but I guess I had assumed that earlier decisions would provide some sort of precedent. I suppose the fact that they are first instance decisions explains why they are not binding. Interesting.