Saturday 31 January 2009

One small victory for trade mark owners ...

South Shields occupies an important role in my life: I stood there in the 1983 General Election (winning second prize: not much of a lasting memento) and secured my place in history, yet unrecognised, by being surely the only Conservative parliamentary candidate ever to hire a hall (in a working men's club, I think) and inviting 200 redundant shipyard workers to come to a meeting.  The Readheads yard did eventually reopen, but the little I contributed to the project didn't lead to a continuing relationship.

That has nothing to do with this story, though, except that a shopowner in South Shields has just been fined for selling counterfeit cigarettes.  The Shields Gazette, in which we managed to get at least a story a day during the election campaign, reports that the defendant was fined £225 under the Trade Marks Act, and £50 for each of four offences under the Consumer Protection Act relating to the absence of health warnings from the packs.  Her address was given as Cleadon Village, which back in 1983 party workers described as "stockbroker belt".  It may be that the penalties did not hurt her much.  It looks from Google Maps as if the shop was a stone's throw from my campaign headquarters - "The Rooms", as they were known.  Rather less salubrious.

Back when I was standing for parliament, of course, the Copyright, Designs and Patents Act was not even on the drawing board, and the Trade Marks Act 1994 was a long way off (so too was the Directive on which it is based).  There were criminal offences in the copyright world, but not yet in the trade marks world: working for the Society of Motor Manufacturers and Traders, I was awfully familar with the problem of counterfeit car parts but I don't recall us trying to get legislation to create criminal offences.  Why should public bodies concern themselves with protecting the interests of intellectual property owners?

My conviction that trading standards officers were not the right people to deal with trade mark problems was confirmed a few years after the 1994 Act came into operation, when a client was prosecuted at the behest of a trade mark owner.  He had certainly arguable defences under section 11 of the Trade Marks Act, but they cut no ice whatsoever with the authorities.  The criminal law is a blunt instrument for dealing with an extremely nuanced area like trade mark infringement: but in the present case, there seem to be no nuances involved, and justice has surely been done.  I can't help feeling, though, that consumer protection is the more appropriate rubric for the prosecution, and the trade mark owner should have been left to take action for infringement.  The award of damages, and costs, would probably have meant more to the defendant than the paltry fine, too.

Tuesday 27 January 2009

IPso Jure Pagecast

I have belatedly worked out how to use Pageflakes, encouraged as is so often the case by Mike Semple Piggott's example. (But I certainly won't be taking up Woodbines, though I too am partial to an occasional glass of Rioja.) As a small service to the IP community, I have assembled a Pagecast of IP blogs, to which there is a link in the sidebar of this blog. I would be delighted to receive suggestions of further relevant blogs to include.

The next stage is to work out how to use Twitter, where I find to my alarm that I am being followed by God, or someone purporting to be Him.

Monday 26 January 2009

Are the English courts anti-patent?

The IPKat this morning carried a piece responding to a question from Eric J Seiker, a European Patent Attorney (the only EPA, he says) at Perkins, about the friendliness of the UK courts towards patents. Foolishly, I allowed myself to indulge in a wild goose chase, searching BAILII for reports of decisions of the Patents Court or the Patents County Court (so, England and Wales only, not the UK) in cases involving infringement or validity or both. The results of my quick research are here if you are interested.

Sunday 25 January 2009

Introduction to Intellectual Property

My first day-long course of 2009 for Quorum Trainig is Introduction to IP on 6 February.  Here is the course information on the Quorum website - so if you're interested, please come along!

Patenting software

I'm presenting a webinar on software patents for CLT on Thursday 5 February: here is a link to information about it on CLT's web site.  I hope it will be interesting ...

Tuesday 20 January 2009

Copyright licensing schemes

Among my myriad subscriptions that clutter up Google Reader each morning - it's impossible to keep the total number of unread items below 1000 - I find one telling me of The Copyright (Certification of Licensing Scheme for Educational Recording of Broadcasts) (Educational Recording Agency Limited) Amendment) Order 2009 (SI2009 No. 20, indicating a very slow rate of legislative activity so far this year on the part of a government that has completely rewritten the record books, if not quite the statute books). This is going to excite very few people, but it highlights one of the most - to me, anyway - obscure corners of our cpyright legislation.

Back in 1988, when the Copyright, Designs and patents Act became law, I wrote a short article for The Lawyer about it. Because this was journalism rather than the sort of low-grade legal article-writing that I was even then accustomed to, I decided to include some comments from other people, which is why I spoke to the late Charles Clark, the architect of the Copyright Licensing Agency and thanks to my previous job at the CBI already an acquaintance, to find out what he thought about the provisions on licensing schemes.

He offered me two memorable comments. Chapter VII of Part 1 of the Act was, he said, "byzantine" in its complexity: and he imagined that only about five people would ever understand it (echoing, perhaps, Lord Palmerston's famous dictum on the Schleswig-Holstein Question). I was too polite to ask if he thought he might be one of them: I have not tried very hard to join that select group.

Anyway, this latest piece of secondary legislation is made under the powers conferred on the Secretary of State by Section 143 of the Act. This section (which is in the notorious Chapter VII) deals with the certification of licensing schemes, which in turn are defined in section 116. The purpose of getting a scheme licensed is to displace another provision of the Act which permits an activity otherwise restricted by copyright. In this case, the permitted act is recording by educational extablishments of broadcasts (section 35, sub-section (2) of which says "This section does not apply if or to the extent that there is a licensing scheme certified for the purposes of this section under section 143 providing for the grant of licences").

Section 143 is not particularly onerous. It is concerned not with the fairness of the licensing scheme (that's a matter for the Copyright Tribunal), only with whether the works covered by it can be identified with sufficient certainty, and it sets out the charges and other terms. The fact that it offers a way to knock out some of the permitted acts (Chapter III of the Act) is valuable to copyright owners, and forms part of one of the "central themes" of the Act which is to curb the exclusive rights given by copyright and turn some of them into rights to remuneration.

As for the new statutory instrument, it merely varies the charges imposed under the previously-certified scheme, and corrects a government typo: (“Association de Geston Internationale Collective des Oeuvres Audiovisuelles” deleted and “Association de Gestion Internationale Collective des Oeuvres Audiovisuelles” substituted). So I don't necessarily suggest you spend time seeking out the original source ...

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