Friday 29 May 2015

Copying Is Not Creativity! Why Creative Artists Don’t Need the Public Domain - Office of Copyright

Copying Is Not Creativity! Why Creative Artists Don’t Need the Public Domain is a very interesting and thought-provoking blog post by Stephen Carlisle JD, Copyright Officer of Nova Southeastern University in Fort Lauderdale, Florida. Refuting the oft-cited dictum of either Stravinsky or Picasso, to the effect that great artists steal (he cites evidence that they didn't say it, which actually seems to be more like a lack of evidence that they did, along with a quote from TS Eliot that is supposedly what people think they are referring to, which became somewhat distorted because it really extols the virtues not of copying but of transforming an inferior piece of work), he takes issue with Judge Alex Kozinski (a brave move) who expressed the view (in his dissenting opinion in White v. Samsung Electronics America, 969 F.2d 1512, Ninth Circuit Court of Appeals, 1993 at page 1513) that everything in history has relied on copying:
“Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire is genuinely new: Culture, like science and technology grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.”
Creative people not only don't need a public domain, Mr Carlisle argues, but it actually holds them back from being truly creative. Copyright doesn't protect ideas (or, you might say, ideas are firmly in the public domain), and that is what creative people need to work with. Great stuff. Copyright might be over-powerful, but what is needed (to my mind - this is not Mr Carlisle speaking) is not the present constant process of erosion - death by a thousand permitted acts, or "exceptions" as the philistines in government prefer - but a fundamental reappraisal of some key issues, like the worthless originality test.

In an earlier posting, which I found following a link from the artist's Facebook page (in the modern world that is how these things happen), Mr Carlisle had criticised the decision of Judge Jesse Furman in Dean v. Cameron, 2014 WL 4638355, Southern District of New York, 2014, to dismiss Roger Dean's claim against the director of the motion picture Avatar. Read his explanation of where the court went wrong by considering individual Dean artworks rather than the "total concept and feel" of his oeuvre - which no-one could deny is original and distinctive, and which many commentators also feel is reflected in the Cameron film. Even Mr Cameron seems to admit that Dean's work was a major influence (but then again, who could visualise a fantasy world without paying homage to the master?).

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Wednesday 27 May 2015

Whisky Galore

Whisky Galore - Whyte and MacKay Ltd v Origin Wine UK Ltd  is another piece I am reposting (well, just posting a link to: rather different) by Jane Lambert. One of those problems that is inevitable with the use of weak trade marks I think.

In defence of my use of the same headline as Jane, of course it was coined originally by a famous fellow West Hartlepudlian, who as well as being an author was also a founder of the SNP - reinforcing, perhaps, the argument that northern England should be allowed to choose whether to go with its close neighbours on the other side of the border rather than its more remote neighbours in London.

Tuesday 26 May 2015

Court of Appeal will not interfere with settlement agreement, adopts broad(ish) interpretation

H&M's underwired bras get no support from Court of Appeal, reports Jeremy under a typically inspired headline on PatLit: the patent litigation weblog. No point in my repeating what he has already done so well ... 

What was this all about? An infringer squirming uncomfortably, trying to grasp at the one straw within its reach, perhaps - it certainly looks like it. Interesting to note (though it is perfectly logical if you stop to think about it) that if the patent holder establishes that the settlement agreement precludes a validity challenge by the infringer, it loses the possibility of alleging infringement and is left with an action for breach of the settlement agreement. Also interesting to note that the court will adopt a fairly broad view of what the agreement means - as it did not specify what test should be used, any conventional test could be applied. That surely accords with what the patentee must have had in mind when the agreement was made, and the infringer should have realised that they would not be let easily off the hook by agreeing to terms that favoured them.

Monday 25 May 2015

Issue. Rule. Analysis. Conclusion.

Legal Solutions Blog What Law School Didn’t Teach You: Observations from ACC’s Corporate Counsel University

Ask any lawyer what “IRAC” means, and s/he will instinctively recite this law school mantra: Issue.  Rule.  Analysis.  Conclusion.  Identify the multitude of issue(s) that are present in a fact pattern; identify the applicable rules or regulations; analyze the respective facts against said rules; and voila– a legal conclusion. - See more at:

Saturday 23 May 2015

Online course on commercialisation of IP from EPO

The European Patent Office offers "virtual classroom lessons" on Commercialisation of IP. Why, I don't know - it's a worthy enough subject, but why should a public institution be moving outside its core function to provide education in competition with many private-sector organisations, which pay the taxes that (presumably - though perhaps it is run entirely out of operating revenue) keep the EPO going? And even if you think it is legit for such an institution to be running courses, why commercialisation rather than something that the institution actually does? You'd have thought it would concentrate first on ensuring that people understood its own operations, how to draw up applications, and the substantive law of the Convention and supporting instruments. Still, it could be interesting and is certainly not expensive.

NIPC Law: Be careful for what you wish for when seeking an interim injunction.

Another reposting from Jane Lambert's blog: NIPC Law: Be careful for what you wish for when seeking an i...: Jane Lambert Whenever a court grants an interim injunction, or a respondent offers an undertaking, to do or refrain from ...

Monday 18 May 2015

Monopoly power in the Eighteenth Century British Book Trade

As much to ensure I don't overlook it as to bring it to your attention, here is a link to an interesting-looking paper by David Fielding (Department of Economics, University of Otago, New Zealand) and Shef Rogers (Department of English and Linguistics, University of Otago, New Zealand) entitled Monopoly power  in the Eighteenth Century British Book Trade and therefore deeply involved with the origins of copyright law.

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NIPC Law: Wrapped up: Everseal Stationery Products Ltd v Document Management Solutions Ltd

Another reposting from my friend Jane Lambert's excellent NIPC Law blog.  Everseal Stationery Products Ltd v Document Management Solutions Ltd. and Others  [2015] EWHC 842 (IPEC) (1 April 2015) is a patent case from the Intellectual Property Enterprise Court, following a hearing a couple of years ago in which the defendant failed to get a declaration of non-infringement. No new law in it, as Jane observes, but a good illustration and possibly a case to mention in a skeleton argument. As my task for today involves working on the IP module of the University (formerly College) of Law's LPC, that has given me an idea ...

Saturday 16 May 2015

Appropriation art: weekend reading

"On Art Attacks: At the Confluence of Shock, Appropriation, and the Law" is a paper by my friend and fellow runner, Rachel Buker (see My Running Friends in the Law in the sidebar) which I just came across (via her posting in the Art and Artifice blog) and am looking forward to reading, but which I wanted to draw to the attention of my reader ...

Thursday 14 May 2015

NIPC Law: Red Berries - Bodo Sperlein Ltd v Sabichi Ltd

Assessing whether copyright has been infringed in the absence of direct evidence: Reposting from NIPC Law: Red Berries - Bodo Sperlein Ltd v Sabichi Ltd [2015] EWHC 1242 (IPEC) (8 May 2015).

Wednesday 13 May 2015

Starbucks (HK) v British Sky Broadcasting Group (Supreme Court)

One thing that baffled me about this case when I saw the first instance judgment ([2012] EWHC 3074 (Ch) (02 November 2012), on appeal [2013] EWCA Civ 1465 (15 November 2013)) was the claimant's name. It turns out that I should have read Arnold J's judgment more carefully, because a footnote tells the reader that "Starbucks HK’s name came from the bucks raised by the sale of Star [a Chinese-language TV station] by Richard Li’s Pacific Century group to Rupert Murdoch’s News Corporation", who of course were the parent company of the defendants in the present case. So the claimant is nothing to do with the purveyor of what my great friend Markus, from Munich, is pleased to refer to as "brown liquid", a generic beverage which he maintains is drunk on every occasion by every American, whether its is masquerading as coffee, tea, or beer or is some sort of soft drink.
Originally a trade mark infringement (and validity) and passing-off case, by the time it reached the Supreme Court (which has now handed down its judgment: [2015] UKSC 31 (13 May 2015)) it was only concerned with passing off and in particular whether it is good enough for the claimant to have international goodwill. That's a very important point in the law of passing off, so this is an interesting and (sad to admit) exciting case.
However, the outcome doesn't appear to be as exciting as I would have liked. Because they didn't actually have any paying customers in the UK, the claimants have no goodwill to protect (and having goodwill is essential for a passing-off action to lie, of course - part of Lord Oliver's classic trinity from the JIF Lemon case, Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491). Old cases show that sometimes a foreign trade can generate some goodwill in this country - taking bookings, for example - but making its TV programmes available online in the UK amounted to nothing more than advertising and created no protectable goodwill.
I am disappointed that the court should have taken such a narrow view of what constitutes goodwill. It is, of course, a tricky thing to define (and you should read my Dictionary of Intellectual Property Law to learn more on that score), but in the modern age (by which I mean on the Internet) surely businesses create what most people would recognise as goodwill by promoting their services in other jurisdictions. Goodwill is, certainly, local in nature, but I think it is time to move on from the old view of goodwill and to embrace the idea that a trade reputation (is it the same thing?) can exist without money changing hands. It is a small step from making the TV programmes available to online viewers in the UK and charging them even a small amount to watch, and it should not be on such small steps that these things turn. (But perhaps when I read the judgment carefully I will find the answer to that.)
It need not even make any difference to the final result. The court could have distinguished the old cases and held that there was protectable goodwill, but gone on to hold that no damage had been suffered. To my mind, that would be a more logical place for the law to have ended up in. I certainly don't say that the court was wrong in any way, and those old cases can't just be wished away, but I do think the ratio does not reflect what people who commonly use the world wide web expect, and the alternative route to the same result might have given a more satisfactory ride.
You can conveniently watch the hearing using these links, which I have copied from the Supremes' website:
Watch hearing
25 Mar 2015Morning sessionAfternoon session
26 Mar 2015Morning sessionAfternoon session

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Tuesday 5 May 2015

Failure to tell applicant about renewal of earlier trade mark infringes CTM rules

Lidl Stiftung v OHMI - Horno del Espinar (Castello) (Judgment) [2015] EUECJ T-715/13 (05 May 2015) is a weird case in the General Court. The German supermarket applied for a figurative trade mark in which the dominant element was the word, Castello, for various comestibles in classes 29, 30 and 31. It was opposed by the owner of a Spanish trade mark, also figurative and also with the dominant element being a single word, in its case Castelló. As I have learned when trying to communicate with Spanish people, that accent makes a world of difference (shifting the stress from the "e" to the "o"): I recall struggling to tell the Hertz representative from whom I had hired a car at Jerez airport the name of the village, Gaucín, to which I would be driving it, oblivious to the fact that the stress lay on the second syllable - and I was so proud of pronouncing the soft "c" correctly. I was also anxious because the Renault Grande Espace to which they had "upgraded" me (for which read, it's the only car we've got at the moment) was not much smaller than the village.

No-one, from OHIM and the Board of Appeal to the General Court, thought that they two were not similar: only Lidl tried to argue the contrary, and they were rather obliged to give that a whirl. Thank goodness for a bit of common sense somewhere in the EU trade mark system. But still, Lidl got what they wanted and the decision was annulled. How come? Simple, really, although the story is somewhat hidden in the turgid prose of the judgment (it is always so difficult to work out what happened, and why, in an EU case). It turned out that a failure by OHIM to provide Lidl wth information about the opponent's filings meant that the applicant was unable to mount its defence properly. (I think that's a fair summary). So, a procedural irregularity on the part of the office - hard to believe, with everything being so thoroughly automated in Alicante, but there it is, nothing is perfect.

IP Draughts pans Google patent contract

Do no evil …drafting is a typically robust piece of work from Mark Anderson, whose IP Draughts blog should be essential reading for anyone with any aspirations to write contracts, whether relating to intellectual property or not. In it he demolishes a badly-drafted contract the terms of which are intended to govern the acquisition by Google of any US patent you might wish to sell to them - the rest of the world, typically, not existing for the purposes of their mindset. Google's professed aim is to prevent unwanted patents falling into the hands of trolls - in the pursuit of which Google will become potentially the biggest troll in the world. Just as well that its well-known slogan (quoted by Mark in the title of his posting) rejects any possibility of trollery!

General Court: Likelihood of confusion between SKYPE and SKY

The General Court (one of the constituent parts of the Court of Justice of the European Union, as I have pointed out many times, another part being confusingly called the Court of Justice) has handed down its judgment on whether there is a likelihood of confusion between SKYPE and SKY, and has decided - to no-one's surprise, I imagine - that there is. The press release is here. I see that the Court refers to itself as "the General Court of the European Union", which is not the title given to it by the Treaty.
It is an interesting contest between two weak but fairly well-known (not necessarily in the Article 6bis sense) trade marks. Allowing registration of a word mark like SKY, irrespective of any distinctiveness acquired through use, contributes greatly to the twin problems of depletion and foreclosure - the processes which make it increasingly difficult to coin a new trade mark. Although the word SKY is present in the word SKYPE (and it is not actually word trade marks anyway - there is some figurative content, which didn't help the applicant) surely that added bit at the end makes a difference, and is unlikely to be lost in aural use, short of the most extreme glottal stop ever. So I am not convinced that there is a likelihood of confusion, even before considering how well-known the trade marks are: and the better-known, the less likely members of the public are to become confused. At least, that's how I think it should be.
Since posting this, I have done an interview with the BBC World Service (using, of course, Skype). Preparing for that caused me to dig a little more deeply into the case, which made me realise that the applications were filed in 2005 and the oppositions in 2006, at which time Skype (first release August 2003) would have been much less well-known than it is now. Sky, on the other hand, was already well-known by then (having been founded in 1990). That suggests to me that there would still be little chance of confusion arising from any similarity between the names, given that people knew Sky and would notice that Skype was different; but also that the market for VOIP back then was much much smaller than now (indeed, I suppose that Skype created the market) and people who might be interested in obtaining services from Skype would be switched-on types who would understand that it was nothing to do with Mr Murdoch's empire. So it doesn't alter my view of the likelihood, or lack thereof, of confusion: a well-known trade mark should receive less protection because it is less vulnerable to confusion.
Because there were three Skype trade marks, there are three reported appeals, though the judgments might involve a lot of copying and pasting. Here are links to the BAILII reports: Skype v OHMI - Sky and Sky IP International (SKYPE) (Judgment) [2015] EUECJ T-184/13 (05 May 2015)Skype v OHMI - Sky and Sky IP International (SKYPE) (Judgment) [2015] EUECJ T-183/13 (05 May 2015), and Skype v OHMI - Sky and Sky IP International (skype) (Judgment) [2015] EUECJ T-423/12 (05 May 2015).

Court of Justice rejects Spain's objections to UPP

The IPKat reports that what he insists on calling the CJEU has rejected Spain's objections to the Unitary Patent Package: you can read the Court's press release here.

Friday 1 May 2015

"IP and Other Regulations" by Mark Lemley

Only a short article, an introduction to a set of conference papers, but for anyone interested in the justification for, and theoretical basis of, intellectual property, IP and Other Regulations by Mark A. Lemley is a great read, and contains several pointers to more detailed discussions of the same topic.

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