Case C 147/14 Loutfi Management Propriété intellectuelle SARL v AMJ Meatproducts NV, Halalsupply NV is a Court of Justice of the European Union (CJEU) ruling regarding trade marks containing both Arabic and Latin letters. It emanates from a reference asking whether the meaning of Arab words should be taken into account and give useful guidance for many trade marks that feature non-Latin script writes Jeremy.Many readers will be familiar with Uber, the on-demand ride-sharing platform which has revolutionised the concept of urban transport and which is in deep trouble in a number of EU countries due to its alleged non-compliance with laws and regulations governing on-demand transportation. Thanks to a Barcelona Court reference, the CJEU has been called on to enter the debate -- which goes far beyond taxis and concern the much broader relation between traditional and sharing economy, explains Katfriend Revital Cohen (Baker & McKenzie, Barcelona).Here's a note from Katfriend and occasional contributor Kevin Winters, who takes a look at a recent US copyright dispute concerning the alleged infringement of Michael Jordan’s iconic ‘”Jumpman” logo by Nike.Jeremy takes a look at Case C‑242/14 Saatgut-Treuhandverwaltungs GmbH v Gerhard und Jürgen Vogel GbR, Jürgen Vogel, Gerhard Vogel, a request for a preliminary ruling to the CJEU made by the Landgericht Mannheim (Germany), on a Community plant variety matter concerning reasonable compensation and farmers’ freedom to propagating purposes under Article 94(1) of Regulation 2100/94.Annsley gives an account of US Supreme Court’s decision in Kimble v Marvel, relating to a toy-patent allowing children to role-play as a "spider person" by shooting webs "from the palm of [the] hand" by way of pressurized foam string.Darren sinks his claws in the latest decision in the apparently endless Hospira v Genentech saga. In this episode (Hospira UK Ltd v Genentech Inc  EWHC 1796 (Pat)), Hospira is seeking to invalidate all of Genentech's secondary patents relating to the cancer drug trastuzumab (Herceptin) so that it can market a generic version now that the SPC for the basic patent has expired.Debate is currently being undertaken at the level of EU institutions as to whether the current legislative framework in the area of copyright should be updated, with initiatives characterised by a complete lack of support on the side of the public opinion. Is this the right direction to take, wonders Eleonora.Once every three months or thereabouts, the IPKat and Merpel post an update of the goings-on both on this weblog and on other IP-flavoured blogs to which members of the IPKat's blog team contribute. Here’s your chance to know all the relevant IP places of the blogosphere and to get to know the new guest and resident kats.In the next few weeks, Jeremy will be posting on a number of cases that are still of interest though they are no longer "hot news", these being decisions on which was unable to comment at the time they were published since he was up to his whiskers in conferencing and foreign travel. The first of these is GO Outdoors Ltd v Skechers USA Inc II  EWHC 1405 (Ch), a 19 May decision of Mrs Justice Rose, sitting in the Chancery Division, England and Wales, on an appeal from a decision of the UK Intellectual Property Office. The point, there, was the inherent distinctiveness of “GO walking” and “GO running” for rucksacks and bags (Nice Class 18) and retail services connected with the sale of clothing and accessories (Class 35).Another in Jeremy's series of not-quite-so-recent cases that he is writing up now because they flashed past him when he was too busy to grasp hold of them a couple of months ago is Allfiled UK Ltd v Eltis & 16 Others  EWHC 1300 (Ch), a 19 May 2015 decision of Mr Justice Hildyard, in the Chancery Division, England and Wales, in an action seeking an interim injunction to stop a total of 17 defendants -- former directors and employees and three companies -- from using its confidential information and intellectual property and from carrying on a trade similar to its own.In his debut post, new guest Kat Nikos tells us of an interesting story involving the (perhaps) first trade mark application refusal by the Greek Patent and Trade Mark Office. The application at stake belonged to an association meant to help lawyers and freelances to comply with (or survive) the Freelancers’ Social Security Organization. Unfortunately, it also included the latter organisation’s trade mark.Viacom subsidiary TV Land has just decided to pull the plug on a current re-run on US screens following the tragic Charleston church massacre. While the Confederate flag is not a brand in the commercial sense, both flags and brands attract loyalties and generate passions that are often irrational and difficult, if not impossible, to suppress, reflects Jeremy.Matti Makkonen, the Finnish father of SMS, passed away this week. He never patented his revolutionary invention, and diverging approaches to IP might be one of the reasons why creating a Silicon Valley in Europe is as easy as finding a Boldrin/Levine book based on a strict, scientific research. The floor goes to Neil.The Sofa Workshop Ltd v Sofaworks Ltd  EWHC 1773 (IPEC), is a recent decision of Judge Richard Hacon in the Intellectual Property Enterprise Court, England and Wales. As Jeremy recounts, it deals with genuine use, acquired distinctiveness, infringement, passing-off, and many, many sofas.Jani introduces himself with The Ukulele Orchestra of Great Britain v Clausen & Another (t/a the United Kingdom Ukulele Orchestra)  EWHC 1772, another trade mark decision regarding “The Ukulele Orchestra of Great Britain” soundly opposing The United Kingdom Ukulele Orchestra.Can the unauthorised use of copyright-protected works amounting to nearly 42' in a 95' film be considered fair use under §107 of the US Copyright Act? This, together with other issues, is what Arnold J had been asked to determine in Sony/ATV Music Publishing LLC & Another v WPMC Ltd & Another  EWHC 1853 (Ch) (1 July 2015), an intriguing case decided earlier this week, having to do with the Beatles and a documentary concerning their first US concert ever. Eleonora tells all.Jeremy pens this post on red roses and black cabs. Red roses are those which are included both in UK Labour and Scottish Labour Party’s trade marks, with the first not so happy with the second using a red rose, so that a dispute arose. The black cabs are those examined by Richard Spearman QC (sitting as a deputy Judge of the Chancery Division, England and Wales) in The London Taxi Corporation Ltd v Frazer-Nash Research Ltd & Ecotive Ltd  EWHC 1840 (Ch), a curious tale of taxi look-alikes and bizarre surveys.******************PREVIOUSLY, ON NEVER TOO LATENever too late 52 [week ending on Sunday 14 June] - EU TM reform | Motivate Publishing FZ LLC and another v Hello Ltd | EPO’s Inventor of the Year: poll results | New network for new IP people | Delfi v Estonia | UPC fees | Smith & Nephew Plc v ConvaTec Technologies Inc | Canary Wharf Group Ltd v Comptroller General of Patents, Designs and Trade Marks | Actavis v Lilly | Council of Europe v EPO | Freedom of Panorama | TM reputation and brain scan | Case management decisions in the Lyrica case.Never too late 51 [week ending on Sunday 14 June] - GIs in France | IPBC Global 2015 | EPO recap | EPO and OAPI bff? | 3-D Lego trade mark | Garcia v Google | B+ subgroup | EU trade mark reform and counterfeits in transit | French v Battistelli | US v Canada over piracy | UK Supreme Court in Starbucks | BASCA v The Secretary of State for Business | Patent litigation, music, politics | Product placement in Japan.Never too late 50 [week ending on Sunday 7 June] - Swiss claims | Italian-sounding trade marks for cosmetics | “IP litigation and Enforcement” event | Saving WiFi | Spy scandal at the EPO | Rihanna v DC Comics | KitKat trade mark | Taste trade marks in the Netherlands | Connectivity and human rights | Trade secrets, client confidentiality and privilege | 3-d printing and counterfeiting | Ericsson v Apple in the FRAND battlefield.Never too late 49 [week ending on Sunday 31 May] - Another copyright-exhaustion-and-software reference to the CJEU | ORO trade marks and GC | Patent Reform in EU | Copyright in the Bahamas | More and more references to the CJEU: communication to the public and linking | Trade secrets and the FoMo phenomenon | Independence of EPO’s BoA.
Monday, 6 July 2015
|Two heads can be more effective than one,|
at least if they can think independently ...
Reminding patent in-housers. This Kat's friends at Managing Intellectual Property magazine are running a survey on the current attitude of in-house patent attorneys to the emerging regime for unitary patents and a unified patent court for the European Union. You can find details of this initiative, and the reasons for it, from the PatLit weblog here. If, as a respondent, (i) you don't already have an iPad mini 3 and (ii) you actually want one, you can opt to enter your name in a draw for one.
News from Eponia. This Kat learns from his ever-vigilant friend Merpel that the Institute of Professional Representatives before the European Patent Office (EPI) is getting aspirant patent attorneys involved in European Patent Office (EPO) governance issues at an early stage. Apparently, in an email offering an online training course for candidates taking the pre-examination of the European Qualifying Examination in 2016, there were accidentally included three attachments setting out the EPI’s view of the proposed reforms of the Boards of Appeal of the EPO, and the response to the ongoing consultation on the matter [here and here].
Conscientious objectors, take note. "L'Oréal Lawyer Claims Company Fired Him When He Wouldn’t Pursue Problematic Patents" was a headline that this Kat deemed too good to hide away in the "Around the weblogs" feature below. It's a blogpost from Suits by Suits ("A legal blog about disputes between companies and their executives", by US law firm Zuckerman Spaeder LLP), about an action brought by patent attorney Steven Trzaska under New Jersey's Conscientious Employee Protection Act. The allegation is that the company set its New Jersey a quota of 40 patents to file in 2014 but that some of them were of "low or poor quality" in that they were, er, cosmetic ... The Kats hope to hear more about the progress of this case, and wonder whether, on a broad construction of its provisions, the Act would also cover conscientious objections by lawyers to instituting patent infringement proceedings or demanding royalties where they have reason to believe that their employer is indulging in a spot of trolling.
Casting nasturtiums on Nagoya? The Royal Horticultural Society, gaining its first ever mention on this weblog, is running its very own Nagoya Protocol event [if you're not sure what this is about, click here for background and here for Darren's earlier Katpost on a failed legal challenge to it by a consortium of German and Dutch plant growers].
It is key that the response to the Nagoya Protocol is from across the horticulture sector and in collaboration with Defra and NMRO. The RHS, will therefore, over the next few months be engaging with key stakeholders from horticulture, Defra and National Measurement and Regulation Office (NMRO) to raise awareness on the Nagoya Protocol, to formulate a shared response and to work towards informing the process of ‘best practices’. This will include holding a meeting for those with concerns about or an interest in the Protocol and the legislation to share their views with Defra and the NMRO, and this will form the basis of how UK horticulture can respond constructively to the legislation.
This meeting will be held at RHS Garden Wisley on 27 July with representatives of Defra and NMRO being present. Those interested in attending this meeting please contact Laura Robins on email@example.com with your name and email address.
|The 'bad old days' of clean car technology ...|
This Kat reported that August that German and Dutch associations of plant breeders had challenged EU Regulation 511/2014 (the Regulation implementing the Nagoya Protocol and setting out compliance measures for EU users) before the General Court in order to seek its annulment.
Details at that time were a little patchy, although some helpful comments provided a little more information. Now, our eagle-eyed blogmeister has noticed from an e-Bulletin from Herbert Smith Freehills (to whom a very grateful Katpat) that the General Court has rejected both challenges as inadmissible.
The German action was filed by Ackermann Saatzucht GmbH & Co. KG and 16 other persons; the Dutch action was filed by ABZ Aardbeien Uit Zaad Holding BV and 15 other persons, all active in the plant breeding sector.
The two decisions, T‑559/14 and T‑560/14, are basically the same. They are quite brief, and you can read them (in English!) here and here. They are probably of more interest for an understanding of who may admissibly challenge an EU Regulation than for enthusiasts of the Nagoya Protocol, although the evidence is that there are more of the former than the latter among the readership of this blog (somewhat to this Kat's regret).
In both cases Council and Parliament requested that the challenges be ruled inadmissible, and the Court agreed. The Court noted that the Regulation was a legislative act, and not a regulatory act. Therefore, there were only two routes by which a person might seek its annulment - either the Regulation was addressed to them (which it was not) or if the "act is of direct and individual concern to them". The Court considered that
It has consistently been held that persons other than the addressees of decisions can claim to be individually concerned only if that decision affects them by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee.The Court then held:
Thus, it is clear that the applicants are affected by the contested regulation only in their objective capacity as users of genetic resources or traditional knowledge associated with genetic resources, as defined in Article 3 of the contested regulation, in the same manner as any other user coming within the scope of the contested regulation. No particular quality or fact characterises them in relation to other persons coming within the regulation’s scope.Accordingly, the actions were held inadmissible.
It is hard to see that any other outcome to these challenges was possible, but it is a pity that the result means we have no judicial consideration of the legislation, which would have been interesting and maybe even illuminating.
A reminder to readers: the penalties for non-compliance with the Regulation come into force on 12 October 2015, so you have only three months to become familiar with the Nagoya Protocol before it begins to really affect researchers.
Letter from AmeriKat: No Supreme Court rescue for Google in Oracle dispute and Microsoft/Kyocera settlement
|The AmeriKat giving tribute to Old Glory|
|You say "potato", I say "potash": |
the first US Patent
"So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API. It does not matter that the declaration or method header lines are identical. Under the rules of Java, they must be identical to declare a method specifying the same functionality — even when the implementation is different. When there is only one way to express an idea or function, then everyone is free to do so and no one can monopolize that expression. And, while the Android method and class names could have been different from the names of their counterparts in Java and still have worked, copyright protection never extends to names or short phrases as a matter of law."
|No ordinary Joe in|
the eyes of the CAFC
There has been an outcry from many commentators that the Supreme Court's ultimate denial, and the filing by the Department of Justice, was based on the CAFC's fundamental misunderstanding of the difference between APIs and software and will allow Oracle and others to "have an unprecedented and dangerous power over the future of innovation" (see the EFF's amicus brief which was signed on behalf of 77 computer scientists). The case will now return back to federal court in San Francisco where the court will decide whether Google's use of the software was "fair use".
now entered into a agreement which expands upon a previous licencing arrangement with Kyocera which "enables the companies to use a broader range of each other's technologies in their respective products through a patent cross licence" (see Microsoft press release here). Kyocera follows Barnes and Noble, Foxconn, Invetec and Samsung in the line of companies that have recently settled with Microsoft.
Sunday, 5 July 2015
When does a red rose look too much like a red rose? Not everybody spotted this item in the Scottish press last week, but this Kat is surprised that he did not receive the link from one of his many Scottish readers. It's a piece published in heraldscotland with the title "UK Labour tries to block trademark for Scottish Labour Party". This article, in relevant part, reads as follows:
Labour councillor Dennis Goldie applied last year to secure the name Scottish Labour Party in the hope it would be used by a new stand-alone organisation. Goldie ... wanted to gift the trademark to the leader of Scottish Labour in the event of a general election drubbing [in which the previously dominant party was left with just a single seat]. He admitted the £500 application to the UK Intellectual Property Office (IPO), which was paid for by a local Labour club, would be a "surprise" to HQ, but said it was "done to be helpful". However the UK Labour Party has now raised an objection with the IPO. ...The Labour arty's election manifesto position on recognition of the importance of intellectual property is summarised here. The red rose, as a badge of political affiliation, is much older than the Labour Party, though, being the symbol of the House of Lancaster in the Wars of the Roses.
Goldie ... applied to register the trademark after realising Scottish Labour had never safeguarded its own name. Covering electronic and printed material, clothing, badges, fundraising, and political activity, the trademark was intended to protect the name being hijacked by opponents. But Goldie was clear he also wanted to obtain the name to make it easier for Scottish Labour to break from UK Labour and become fully autonomous. "In the country at large, there probably is a view that the Scottish Labour Party should be independent of the national Labour Party," he told the Sunday Herald at the time. ...
A Labour spokesman said: "The Scottish Labour Party is at its best when we work together with friends and colleagues across the whole of the UK Labour Party. The old trade union slogan applies to our country as much as to our party - unity is strength."
|The defendant's taxi|
|The claimant's taxi|
|Here Comes the Sun|
also for the defendants in this case?
|Mr Justice Arnold|
|Not this time|