Tuesday, 13 September 2016

Repair clause referred to Court of Justice

My great friend David Musker reports on the Class 99 blog that a court in Milan has referred to the Court of Justice (how nice to see the institution being identified by the correct name!) for an interpretation of the repair clause (Article 110 of the EU designs regulation, No 6/2002). The questions asked - of which there are two - are (as is so often the case, partly I suspect as a result of their having been translated into English) pretty incomprehensible. Why do these questions so often have to ask if something is "precluded"? In BMW v Round and Metal, to which David's article refers, Arnold J, in a judgment that epitomises the adjective "Arnoldian", rejected the proposition that the defendant's alloy wheels fell within the scope of the repair clause: they were sold not as straight replacements but as alternatives, with different dimensions - and tellingly they were usually supplied in sets of four. What a misfortune to damage all the wheels of your car at once! Although it reminds me of a client who found her Boxster (this was probably 20 years ago) completely devoid of wheels one morning ...

An interesting point in the reference is that it appears to try to establish a connection between the "complex product" (the car) and the replacement part by reference to the fact that the wheels are approved under UNECE Regulation No 124 for use on that particular model of car. I'm looking forward to seeing what the court makes of that. I'm also trying to find some more enticing prospects to look forward to.

Friday, 2 September 2016

Monkey selfie: Animal charity Peta challenges ruling - BBC News

BBC News reported a while ago that Peta, the animal rights charity, with which I usually have complete sympathy, is arguing in a court in California that copyright in the now-famous macaque self-portrait belongs to the photographer. It sounds as if there is some dispute about which monkey took the photo (by which I mean pressed the shutter release or whatever it's called on a digital camera, as I can't imagine that he or she had the faintest idea what the action would lead to), but that leaves the main point that the charity argues that "[n]othing in the Copyright Act limits its application to human authors…".

I claim no particular expertise in U.S. copyright law, and am prepared to accept that there is at least an arguable case to support that proposition. Whether that justifies Peta spending charitable funds on a lawsuit which most would consider frivolous is another matter. Ever since I read Peter Singer's "canonical" (nice word - thanks Wikipedia) book Animal Liberation (here on Amazon), one of the many ways in which I distracted myself from the grinding boredom of articles of clerkship (1978-1980), I have tried to be as conscious of speciesism as of racism and sexism. I haven't perfected it, but I hope I have got close.

I can't put my hands on my well-worn copy (the paperback version of the first (1975) edition, published 1977) just at the moment, but I don't think it contains anything about animals' copyright. [later: I have found it now, and there is no entry in the index for "copyright" or "intellectual property", or even just "property", which isn't conclusive but will do for now.] In UK copyright law, the author of a work (and therefore, usually, the first owner of copyright in it) is the person who creates it. A person is (this from the Oxford Companion to Law) typically defined as "a being, entity or unit which can bear legal rights and duties". The word "being" without the adjective "human" seems to leave open the possibility of animals being authors. However, legal personality, the article in the Companion goes on, has to be distinguished from legal status, citing as an example that we can say the legal status of an animal [a non-human animal, I would add, not for the avoidance of doubt but to highlight the ambiguity or inaccuracy of the original statement] is that of property and that of a human is a person.* Professor Singer might, I imagine, take issue with the narrow definition of "person", especially as the whole point of his thesis is, as I understood it, that we should regard animals as having rights (though not necessarily accompanying duties). However, that is clearly the way the law works and I don't see any way for Peta to put forward a case for an alternative interpretation in the English courts, even if the Charity Commission would let them.

Now that I have found my copy of the book again, I'll search it for any suggestion that animals' rights should extend to owning property, and in particular intellectual property. I'm fairly confident that, however proprietorial some animals might be, Professor Singer didn't advocate extending legal personality to them to that extent.

Not Lucy's book
*See further, R. Tur, 'The "Person" in Law', in A Peacocke and G Gillett (eds), Persons and Personality: A Contemporary Inquiry (Oxford: Basil Blackwell, 1987), 121, and N Naffine, 'Who are Law's Persons? From Cheshire Cats to Responsible Subjects' (2003) 66/3 Modern Law Review 346. Professor Naffine is also the author of the article in the Oxford Companion to Law to which I referred and from which I repeat these two references.

'via Blog this'

Visibly Faster Turnarounds By Indian Trademark Registry

This morning, when I opened my inbox, one email in particular surprised me. The email contained our first ever “e-certificate” for a trademark application filed just about one year ago! In the past, such prompt action by Indian IP Offices was almost unheard of. But clearly, the technology-enabled procedural changes introduced over the past year or so have begun to bear fruit.

The issues faced by the Registry in printing and dispatching hard copy (Registration Certificates) are quite well-known. On many occasions, the certificates did not reach the intended recipients. This not only caused delay and inconvenience to stakeholders but also imposed needless cost on the Registry as well as Applicants (who had to apply for a duplicate certificate).

About a month ago, the Indian Trademark office, via its notification dated 28th July 2016, had notified the new system of sending only e-certificates (Registration), and doing away with the century old system of sending hard copies. This was made effective from 1st August 2016 for all trademark applications:
  • published in the Trade Marks Journal on or after November 23rd, 2015;
  • where no request for amendment filed on behalf of the applicant is pending disposal;
  • where Trade Mark registry’s database contains the original application;
  • where no compliance requirement is pending on part of the applicant; and
  • which have not been specifically prohibited for registration by the order of any court, IPAB or any competent authority.

With the adoption of the new system it appears that the Registry is taking every possible step to eliminate the root cause for delay and thus expedite the registration process and deliver on the higher standards outlined in India’s new IP Policy.

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