Conference Report- Hot Topics in IP (23rd October 2013)

Lexis Nexis gathered together a formidable group of speakers to provide an over view in their respective field of knowledge and authority. and called it Hot Topics in IP. The venue was the Thistle Hotel, Marble Arch London, and in the chair was Phil Sherrell, Partner at Bird & Bird.

Hats off to Lexis Nexis for putting this together. Unusual not to fall asleep in a seminar of this length but trust me there wasn’t a drooping eyelid in sight the whole day, the standard of each seminar was impeccable and packed with information and only brief snippets are provided here. Definitely worth attending the next series of seminars the first being IP for in-house Lawyers scheduled for December 2013.

Mark Owen (Taylor Wessing) gave some insight on the latest changes to UK copyright law and touched on impending legislation in the form of the IP Bill 2013 and the Enterprise Reform Act 2013 and that the exception for Private copying being a definite inclusion; Fair use (USA) vs Fair dealing (EU); the impact of the parody exception and how fair dealing will apply to it; quotation (draft legislation) and infringement with some useful suggestions on what might result in infringement and also the question of data and content mining with examination of s29A CDPA and the interpretation of words such as research, non-commercial and lawful access. He considered data and content mining and posed the question “are exceptions turning into rights”? There appears to be no case law!

Martin Howe QC from 8 New Square in his presentation titled “Are image rights now protectable in English law?” illustrated the law of passing off as summarised by J Laddie in Irvine v Talksport [2002] and considered amongst other cases, Rihanna’s passing off case - which he won!

Dr Birgit Clark, Senior Trade Marks Practitioner, Baker & McKenzie gave a presentation entitled “Recent developments in trade mark law", giving some insight on keyword advertising in Interflora v Marks & Spencer and elaborating on origin function and dilution. She considered other European and domestic legislative developments and concluded that there is still a lot of fine tuning to be done by the National courts in interpreting CJEU’s guidance.

Neville Cordell from Allen & Overy took a walk through development in design rights and illustrated comprehensively why in Lucas Film v Ainsworth Lucas film was successful in suing Ainsworth both in the US and English courts for copyright infringement although Ainsworth denied that copyright existed in 3D articles and asserted a defence under s51 CDPA 1988 to the design drawings. The Supreme Court in its policy considerations recognised an emerging legislative purpose in protecting 3D objects in a graduated way.

In his overview of the Intellectual Property Bill he drew attention to what he considered the most controversial proposed change, that to s13 of Registered Design rights which makes the deliberate copying of a UK or Community registered design a criminal offence.

Mark Ridgeway, Allen & Overy LLP in his illustration of recent developments in breach of confidence/trade secret cases, considered Force India v Aerolab. In the first instance Arnold J held Aerolab was entitled to work for team Lotus because by that time it had accepted a repudiatory breach of contract on the part of Force India. However, Aerolab was in breach of the contract (alternatively liable in equity) because confidential material belonging to Force India had been misused but that the extent of copying was not as great as Force India had claimed; and resulted in an award of damages of €25,000. On appeal, €25,000 was upheld as a reasonable licence fee by the courts which considered that little other benefit had actually been gained.

Guy Burkill QC of Three New Square gave a brief summary on key developments in mobile phone patent litigation and patentability of computer programmes - a burgeoning field! He also considered that a further issue that may affect many patents in the field of smart phones is “excluded subject matter” particularly with the rise in “apps and firmware”. Some hilarity was caused by the notable squabble between the UK and EPO as to the meaning of words.

Paul Gardner (Osborne Clarke) did a remarkable job of providing an overview of the developments in IP law and practice in the interactive entertainment business. He focussed on the question, what is a computer game? He described the multiple copyrights involved and the myriad questions this raises, not least of which is the headaches it is all causing for publishers today, and asked who knows what the future holds?

Duncan Ribbons from Redd gave a much welcomed overview of IP litigation in the wake of the Jackson reforms. The upshot is: apply the cost benefit analysis to each stage of litigation, make sure you plan rigorously at the outset and expect tougher application of the rules. We will all wait to see if these reforms do indeed lead to faster and cheaper litigation. A perfect distillation much welcomed at the end of a day full of information and questions.