Games hype

It seems as if half the country is already sick to death of the games taking place in London (and other venues) later this summer. The draconian IP-style protection given to the event's own signs, compounded by the ludicrous degree of protection given to the main sponsors, is a huge turn-off. Such a pity, as the sporting events will be wonderful and I will enjoy watching many of them - on the television.

What I will not enjoy doing is trying to get to work. At Paddington the other evening I was offered a leaflet explaining alternative forms of transport (which, in the modern age, include Shanks's pony), but I prefer to telecommute if I can. Thanks to this excellent piece by Philip Stephens in the FT I now understand that this is what the powers-that-be want me to do.

Cool branding

In the local branch of Tesco the other day, I was taken with the idea of doing a comparative review of energy drinks, precisely the sort of thing for which I maintain another blog ... especially as I can't write about running on it at present, and writing about running injuries isn't so much fun. Perhaps partly because injury prevents me from running, my energy levels have been low and energy drinks (and foods) have been on my mind. There are limits to how many cappuccinos one can take in a day, although anyone who knew my mother and her daily intake of coffee would wonder how I can have failed so massively to inherit the smallest part of her capacity for the stuff.

Of course, I could just go for the market leader, but (a) I have a predisposition, in all matters, towards the underdog and (b) the leader of this particular market, by dint of certain opposition proceedings directed against a client's Community trade mark application, has forever lost me as a customer (and, pleased though I was at Mark Webber's victory yesterday (that underdog thing again, perhaps), it was very much about his achievement and not that of the team for which he drives). So I picked up four of those oddly small cans in which energy drinks are presented, which perhaps merely serves to emphasise their potency, and have been trying them out and writing tasting notes as I go. In due course I will publish the results on the appropriate blog. But what I want to comment on here is the branding of one of the products.

Now clearly I am not an average consumer, because I don't pick up the look-alike own-label products mistaking them for the branded ones (generally I pick them up because I don't want to pay the prices commanded by the branded ones). Only when I took the third of my sample energy drinks from the fridge did I notice something strange about it. The name on the can was "P***y", and I don't think (before it was bowdlerised for Tesco) it was intended to allude to the IPKat. According to the maker's website, www.pussydrinks.com (Bowdler has no role to play on the Internet), "The drink's pure - it's your mind that's the problem". Indeed it does seem to be made exclusively from natural ingredients, and I can vouch for the fact that it tastes good - none of the medicinal flavour of the established energy drinks, though without the kick of the competition from Zen Republic (where do they get these names from?) which contains chili and ginger.

Of course, trade marks cannot be registered if they are contrary to public policy and morality, and the caselaw on this provision makes entertaining reading. How can anyone have ever thought some of those trade marks would ever attract customers? But Pussy Drinks (Holdings) Limited have a CTM registration for Pussy Natural Energy (here) and an honourable mention in Marketing Week, in an article on how cool brands can keep their coolness - FCUK being a classic instance of how not to do this. For my part, I love the product but I love better the fact that the competition - the second healthiest energy drink in the UK, its website proclaims, in a "we try harder" moment - contains no taurine, the very sound of which makes me want to avoid it, and is approved by the Vegetarian Society, making me wonder what's in Pussy that might prevent a similar endorsement, or did they just never ask? The branding, to me, is neither here nor there (so long as there are no off-colour bovines involved), and once again I find myself wondering about the way trade marks are used in the modern world. I guess it's all about fashion, and I am put in mind of a quote from Oscar Wilde which I read the other day: "Fashion is a form of ugliness so intolerable that we have to alter it every six months."

Section 52 on the way out?

I refer, of course, to that section in the Copyright, Designs and Patents Act 1988. Under the Enterprise and Regulatory Reform Bill, introduced the other day (23 May to be precise), section 52, beloved of students of copyright law and those who set exams on the subject (it seems to crop up every year in the external London LLB papers, but, students, please don't rely on that as a guaranteed bit of question-spotting) will be repealed.

Whast does section 52 do? According to the Information Notice on the website of the soi-disant Intellectual Property Office:

This exception currently limits the term of protection for artistic works which have been produced through an industrial process.

Which not only reveals a lack of familiarity with the section itself, it reveals a lack of comprehension of the way copyright works. How, pray tell, can an artistic work be produced "through" an industrial process? And what  makes you think that "through", rather than "by", is the appropriate preposition to use, anyway? And why is taxpayer money being wasted on such ineptitude? I would prefer to see my taxes spent on educating people so they attain a reasonable standard of literacy.

Section 52 actually says (in subsection (1)):

This section applies where an artistic work has been exploited, by or with the licence of the copyright owner, by—
(a) making by an industrial process articles falling to be treated for the purposes of this Part as copies of the work, and
(b) marketing such articles, in the United Kingdom or elsewhere.

It is concerned with exploitation, not with production. Had the Information Notice said "production of copies" I would not have been moved to play the grumpy old man - but for the sake of a couple of words, and a few moments thought before putting pen to paper (or fingertip to key) accuracy has been cast aside. Anyway ...

What will it mean in practice? Section 52 does not feature frequently in litigation. In fact, all I got from a search of the cases on BAILII is Blayney (t/a Aardvark Jewelry) v Clogau St. David's Gold Mines Ltd & Ors [2002] EWCA Civ 1007 (16 July 2002), and that case only comes up because my Boolean search was, as my old maths teacher could have predicted (had he not passed away a couple of years ago), rubbish: it so happened that there were 252 lost sales involved in a case, Watson, Laidlaw & Co Ltd v Pott, Cassels and Williamson (1914) 31 RPC 104, cited by the Court of Appeal, and also an odd 52 pence in the calculation of the profit that the claimant would have made. So make that no cases on section 52, a number confirmed by the first IP textbook that comes to hand when I reach towards my bookcase.

But section 52 does an important job, or at least it did and I am not convinced that it doesn't still. The fact that it doesn't feature in litigation matters not, just as the argument that a speed camera that catches no speeding motorists is redundant: in fact, it could simply be doing what it's there for. It goes back, dear reader, to the good old days when copyright was the preferred means of protection for industrial designs, because it gave protection for 50 years (yes, it was that long ago) post mortem auctoris, whereas if you troubled to register a design under the Registered Designs Act 1949, v1 (you will appreciate that we are now on v3), you would get 15 years' protection. Where was the incentive to pay money to the Designs Registry (part of the Patent Office, but don't get me started on silly names, read my Dictionary under "Gowers", or go straight to the judgment of Jacob LJ in EI Du Pont Nemours & Co v United Kingdom Intellectual Property Office [2009] EWCA Civ 966 (17 September 2009) where the learned judge talks of 'the trendy but pointless "operating name"' behind which the agency now hides) when you got longer protection by not doing so? Of course, registration would have given stronger protection, but was it sufficiently stronger to make the difference?

Nowadays, registration will give 25 years' protection and a registered design won't be of quite such doubtful validity as it was in those days. But the principle of section 52 seems to me to hold: if the law offers two forms of protection (and there is no reason why it shouldn't), it is entirely right that the rights concerned should be made coterminous. If the right period of protection for an industrial design is 25 years, copyright should not give longer. If the UK is different from other EU countries by not allowing full copyright protection for such artistic works, but EU law does not mandate harmonisation (and it doesn't), what reason is there to change? Professor Hargreaves recommended evidence-based policy-making, so where is the evidence on this matter?

The Press Notice from BIS (have I mentioned my aversion to trendy names? But this isn't just an "operating name" for the Department of Trade) hints at what the evidence might show. One of the aims of the current Bill is:

Deterring the importation and sale of unauthorised replicas of classic designs which qualify for copyright protection and extending copyright protection for mass-produced artistic works to life of the creator plus 70 years. These measures will promote innovation in the design industry and encourage investment in new products, while discouraging unauthorised copies.

Which seems to me to be saying that the period of protection afforded by the registered design system clearly isn't enough, given the longevity of some designs (and the fact that until recently no-one bothered very much with registering designs anyway). Far from promoting innovation, though, removing the restrictions on copyright term will encourage the use of classic designs. That might be a good thing in itself, but the professed policy goals appear to be the complete opposite ...

At least section 51 has removed the biggest problem caused by copyright interfering in the field of industrial designs - there might be copyright in the design of an exhaust pipe (if embodied in an artistic work) but making the article won't infringe copyright in the artistic work. So perhaps abolishing section 52 won't be an unmitigated disaster. It just seems totally misguided and contrary to the evidence.

The Information Notice then goes on, without drawing breath (and therefore suggesting that this is part of the same thought process):

Currently, when section 2(2) of the European Communities Act 1972 is used to amend the exceptions to copyright and performance rights, this can cause difficulties as its use may require a downwards adjustment of criminal penalties in copyright legislation. 

An order making power to allow amendment of any exceptions to copyright and performance rights (via secondary legislation) will enable the Government to preserve the level of penalties which are set out in the substantive copyright legislation. In some cases this includes penalties of up to ten years for copyright infringement on a commercial scale. It would not allow any reduction or increase in penalties.

Excuse me, but that first paragraph requires some explanation. I just don't see how that happens, though I am quite prepared to accept that it does. As for the second paragraph, the ineptitude of the author again becomes glaringly apparent: what is the "order making power" referred to? It clearly means an order that makes power: had the author intended to mean a power to make orders he or she should have written "an order-making power", and that seems to be what was intended. OK, so after a little thought I worked out the meaning, but no reader should be obliged to think through what the author intended to write. The whole point is to make the meaning clear by means of the words (and punctuation) used. Especially where the author purports to be a professional writer.

Happy St Ivo's Day!

St Ivo, as everyone who has ever met my former colleague Robert Venables will know, is the patron saint of lawyers. You can learn more about him (St Ivo, that is, not Robert) on Wikipedia here - and no, I didn't create that entry.

Shooting up the Amazon charts

Just back from INTA, handing out business cards in the form of a bookmark advertising the Dictionary, and up the charts it shoots - number 78,686 in books, up from somewhere in the mid-two millions, and - even more satisfying - fourth among legal dictionaries. This probably reflects a handful of sales, but I'm not quibbling.