Tuesday 29 July 2014

Actavis Group PTC EHF & Anor v Pharmacia LLC [2014] EWHC 2611 (Pat) (24 July 2014)


Russia: proposed changes to protection of descriptive trade marks

Бизнесу запретят патентовать изображения и категории товаров says Izvestia (Известия - the font it uses for the masthead, which looks unchanged from Soviet times, is beautiful), committing the journalist's inevitable sin when writing about intellectual property, because that third word is part of the word 'to patent' and this is clearly a trade mark story. It concerns a proposal to stop the registration of trade marks comprising descriptive words or images of products themselves - a crispbread manufacturer registered a picture of their product as a trade mark and allegedly used it to create a monopoly, and other similar instances are cited in the article, which Google Translate can help you understand. There is also a blog entry from World Trademark Review here which is in English.

At present this is just a proposal before the Federal Council, the upper house of the Federal Assembly of the Russian Federation (you might be surprised to find that the word for 'Council' is 'Soviet' - they should surely have found a synonym), but it is interesting to see another country grappling with overstrong trade mark protection. An interagency working group is being set up to consider the problem. Its conclusions might be something from which the European Union could learn.

Review of EU copyright rules - result of public consultations

The result of the public consultations on the Commission's review of EU copyright rules has been published here. More information about the consultation itself can be found here.

Survey evidence allowed in trade mark litigation

I had  it in the back of my mind that Enterprise and Europcar were related undertakings, the impression dating back to when a friend was a senior executive with Enterprise in Florida - and I realise that we are talking about when INTA met in Orlando, which was probably about 1997. So it would not be surprising if things were now different in the car rental world. Indeed, back then Enterprise were not themselves in the European market.

In Enterprise Holdings Inc v Europcar Group UK Ltd & Anor [2014] EWHC 2498 (Ch) (22 July 2014) the survey evidence related to the distinctiveness of the claimant's trade marks. In issue was the use of a stylised letter 'e'. Mr Justice Morgan considered the case-law (in particular, the Interflora cases) and judged that, despite criticisms raised of the survey in this case, it should be allowed. A useful review of the authorities, not a case that makes any new law.

US: Ford and General Motors Sued Over 'CD Ripping Cars'

TorrentFreak reports that copyright owners in the USA are suing Ford and GM on the basis that they are selling cars on which they should be paying a levy - because the cars contain equipment which can 'rip' recordings from CDs and store them internally. Under the Audio Home Recording Act 1992, originally introduced to deal with the problem of cassette recorders, manufacturers and importers have to pay a levy, and the car makers aren't. But the law contains (as you'd expect) exceptions to cover personal use and recording devices that form part of a larger piece of kit, which should be helpful to the car makers.

In the UK, the government has historically sets its face firmly against imposing such a levy, so it isn't a problem that car makers here are ever likely to face. Some continental European countries have levy systems, though. How they will deal with cars remains to be seen.

Friday 18 July 2014

Embracing the open opportunity

In a speech yesterday, Commission Vice President Neelie Kroes  welcomed the development of 'open knowledge' and called for urgent reform of copyright law: here's the Press release. 

Her beef about copyright law concerns the effect it can have on teaching and the dissemination of knowledge: educational resources should, she thinks, be free to share. Which sounds fine in theory, but who's going create them without the protection of copyright to ensure that they stand a chance of earning a living from their work?

'It’s a crime', she said, 'when teachers are prevented from freely sharing open educational resources.' On the contrary: it is more likely to be a crime when teachers do share, if they infringe copyright. It's arguably a shame when that happens, but she's got a bit carried away there - and introduced an unfortunate metaphor.

She went on to insist that copyright needs changing: “Those rules were designed for a different age, more about limitationand control than creativity and freedom. Holding back ideas from open education to data mining: copyright needs urgent reform.” Well yes, it does, but wouldn't it be better to get copyright back in its box so that there is no danger that ideas receive protection? So generous and indiscriminate is copyright that it's far too easy for its owners to oppress people who do to their work acts that have not the slightest impact on their economic interests - and the best way to deal with that is to make copyright more discriminating, not to punch holes in the fabric of protection. Introduce a sensible test for originality!

FIFA object to design of Rosberg helmet

According to Die Welt,  FIFA has taken exception to Nico Rosberg's tribute to his country's football team's victory in the World Cup (it has always struck me as slightly odd that the son of the first Finnish world champion should be German, but stranger things have happened). FIFA, who should have learned from the Golden Ball  affair not to take such an absolute view of these matters, asserted that including a representation of the trophy on the helmet infringed its intellectual property rights. Really? Which ones? It doesn't look to me like a trade mark infringement - not the slightest impact on the ability of the trade mark (I assume there is one) to identify the source of anything - and anyway FIFA don't sell World Cups, do they? - and if anything the investment function and advertising function will surely be enhanced by such use. By a substantial majority, readers of MarkenBlog agree that this isn't infringing use.

And even if there is a potentially infringing act, it's only actually infringing if done without the owner's consent. Not to give that consent is remarkably churlish, and makes the owner look pretty stupid. But FIFA already looked pretty stupid after Golden Balls, so I suppose they had nothing to lose.


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