Monday, 5 October 2015

NIPC Law: Cross Border Litigation: Tech 21 UK Ltd v Logitec...

 Another instance of shameless reblogging, or not re-inventing the wheel. When it's been done so well already, why do it again? A very interesting case on jurisdiction in the designs field. NIPC Law: Cross Border Litigation: Tech 21 UK Ltd v Logitec...: Logitech Europe SA is a Swiss company which makes a protective case for iPads called "Big Bang" . This YouTu...

Sunday, 4 October 2015

Glenn Gould and the case for moral rights in sound recordings

Shamelessly linking to the IPKat, but it's such a good piece you need to know about it: Glenn Gould and the case for moral rights in sound recordings

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Monday, 21 September 2015

Alloy wheels

Bayerische Motoren Werke Aktiengesellschaft (BMW) v Round And Metal Ltd [2012] EWHC 2099 (Pat) (27 July 2012)  is old hat but I haven't given it the attention it merits. In that case, Arnold J held that Article 110 (1) of the Community designs regulation (the freeze-plus compromise) should be interpreted as being restricted to component parts which are dependent on the appearance of the complex product - which wheels aren't. Nothing very startling there, and indeed the whole thing smacks of desperation on the part of the car maker - a class of rights-owner notorious for protecting their intellectual property to the utmost, for which of course they cannot be blamed as otherwise shareholders would ask awkward question.

The provision in question says:
    Article 110
    Transitional provision
    1. Until such time as amendments to this Regulation enter into force on a proposal from the Commission on this subject, protection as a Community design shall not exist for a design which constitutes a component part of a complex product used within the meaning of Article 19(1) for the purpose of the repair of that complex product so as to restore its original appearance.

RCDs are colour-blind (and quite right too)

A recent case in The Netherlands shows an important difference between trade mark practice and registered designs. Controversially, OHIM treats black-and-white trade marks as just that (whereas most practitioners used to believe that a registration in black-and-white covered all colours), but a registered Community design presented in black-and-white protects the owner against use of the design in any colour: Case T-68/10 Sphere Time v OHIM, para 82 (General Court), followed on 2 September by the District Court in The Hague in Wibit-Sports GmbH v Aquaparx (thanks to the Class 99 blog for the information). That seems hardly surprising, and is only really noteworthy because of the stupid rule about trade marks. It's another matter if colour is important for the novelty or individual character of the design (in other words, it's a feature of the design that the owner wants to protect), and if the design is filed in colour it is right to assume that the colour is important and to limit protection accordingly, in line with 'traditional' trade mark practice. But if the registered design protects the shape of the product (which traditionally is what design protection has done, of course) the colour used by the infringer should make no difference. Actually, an infringer trying to use this as a defence is grasping at straws, rather like a design owner who claims that unregistered Community design right has been infringed ....
This remains, however, a topical issue with the Trunki appeal on its way to the Supreme Court. There, the Court of Appeal took the view that the striking colour combination which was shown in the RCD was significant, and not present in the accused products. If only they had filed in B&W. But the Court of Justice's decision in the KitKat case (a trade marks case, though a shape trade mark and therefore right on the boundary of the designs field) tells us that features of a product may only be protected by trade mark registration if they are used by the consumer, to the exclusion of other indicia, as an indication of origin, which strikes me as being on all fours with the Trunki design case. However, I am perhaps digressing a little, and the KitKat case is exciting enough to merit separate consideration.

Thursday, 3 September 2015

TTIP: more US market access, reform investment protection, retain EU standards

TTIP: more US market access, reform investment protection, retain EU standards: "An EU-US trade deal should deepen EU access to the US market, but must not undermine EU standards or the right to regulate in the public interest, say Trade Committee MEPs in draft recommendations voted on Thursday. Tools for resolving disputes between investors and states should be reformed and improved, they add."

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Tuesday, 11 August 2015

Copylaw: Publishing & Entertainment Law: Making Sense of Collaboration Agreements

My good friend Lloyd J. Jassin has written an interesting piece entitled "Making Sense of Collaboration Agreements: Double the Trouble or Half the Work?" on his Copylaw Publishing & Entertainment Law blog. Here's the first para and you can go to Lloyd's blog to read the rest:

Nearly everyone has heard the oft-repeated statistic that 50% of all marriages end in divorce. But what about creative marriages?  The odds are no better. Pity the poor expert, celebrity, author, playwright or screenwriter who enters into a creative partnership without thinking about the financial, emotional and practical challenges ahead of them.  If the relationship falters, a well-drafted collaboration agreement (written during the romance stage of the relationship) can be consulted.   If the relationship fails, that agreement will help for a clean break-up.

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Why India is not inventing

An interesting piece about innovation in India, by my great friend Santosh Vikram Singh of Fox Mandal in Bangalore. He writes: "Recently, while speaking at the convocation ceremony at Indian Institute of Science, (IISc) Bangalore, unarguably one of India’s most prestigious institutions, Mr. N.R. Narayana Murthy, Chairman Emeritus, Infosys, touched upon something that made many people uncomfortable. He asked if India’s premier academic institutions (specifically the IISc and IITs) had contributed in making our society and the world a better place? He did not shy away from asking directly if there was one invention from India that had become a household name across the globe" Read the rest here.

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Thursday, 6 August 2015

NIPC Law: Copyright in Commissioned Works: Atelier Eighty Two Ltd v Kilnworx Climbing Centre CIC and Others

Jane Lambert has written at some length about Atelier Eighty Two Ltd v Kilnworx Climbing Centre CIC and Others, in which the ownership of copyright in commissioned works is explored. No point in me repeating it.

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History lesson: Design protection in motor racing

An assignment I am busy with at the moment has reminded me of the 1978 case, Nichols Advanced Vehicle Systems, Inc. v Rees, Oliver and others [1979] RPC 127 (Chancery Division, Templeman J as he then was), on appeal [1985] RPC 445. (As the dates indicate, the appeal concerned various delays that had taken place in the proceedings.) It could alternatively be called Shadow v Arrows. Several disgruntled employees, and their financial backer Franco Ambrosio, left Shadow (whose debut in Formula 1 I remember, though I can't put a precise date on it from memory - in the early seventies - 1973, it turns out) and set up their own team, making up the name from the initials of their surnames, including that of their financial backer (Ambrosio, ReesOliver, Wass and Southgate completing the set. Alan Rees had been one of the founders of March a decade earlier, and that company also formed its name from the initials of its founders, the "M" being Max Mosley, but no intellectual property point arises from that coincidence). Unfortunately, they made up the design of their first car, the FA1, from the design of the Arrows DN9, and intellectual property points did arise from that.

I was delighted to see (not having appreciated it before) that the trial judge was Templeman J. A few years later, "Syd Vicious" was one of the Lords of Appeal who dealt BL a major blow in their litigation with Armstrong Patents Ltd - knocking a huge hole in copyright protection for designs, and paving the way for the New Deal in the Copyright, Designs and Patents Act 1988, the introduction of design right (now necessarily referred to as UK unregistered design right) and the near-exclusion of copyright from the designs field. But the reasons that drove the BL judgment, about spare parts, were not relevant to the Shadow case: there was no issue about the spare parts market.

The DN9 had been designed by Tony Southgate, who had been BRM's designer in their golden period between 1970 and 1972. The BRM P160, designed by him, held the distinction for 30 years of winning the fastest Grand Prix ever (Italy, 1971, driven by Peter Gethin, still the closest-ever finish) and exactly the same car (chassis no 1) also won the following year's Monaco Grand Prix, driven by Jean-Pierre Beltoise, who died last January. That remains, I think, the third-slowest grand prix since the advent of the World Championship in 1950, save for recent rain-delayed races where waiting for the rain to stop destroys the average speed. In 1972 the rain didn't delay the start, only the finish ...

When Mr Southgate designed the Arrows FA1, he reproduced the drawings he had made for the DN9 and the judge held (in what must have been a fairly easy case to decide) that the differences between the designs were insufficient to provide a defence. The defendants argued that they were innocent infringers, and should not be liable to damages, but the judge observed that to sustain this argument they had to believe that they were not infringing, and in fact they only hoped that they weren't. Actually, because of the flagrancy of the infringement, he awarded additional damages, as well as an inquiry as to damages and an injunction which effectively obliged Arrows to produce a new car. Fortunately for them, they had foreseen the outcome of the case and designed and built a complete new car in 53 days, launching it only three days after the judgment, so didn't even miss a race. I suppose that back in the bad old days of Cosworth-Hewland kitcars that was possible, but still impressive.

Several years later, the inquiry as to damages having proceeded at a very leisurely pace (partly, no doubt, because Shadow had folded in the meantime), the matter came to the Court of Appeal: but that's another story, and not one that involves intellectual property.

Saturday, 25 July 2015

Change to transitional arrangements for the repeal of section 52

A news story on GOV.UK tells us that the statutory instrument to implement the repeal of section 52 - that's the section of the Copyright, Designs and Patents Act 1988 which shortens certain aspects of copyright protection when the work is applied industrially - has itself been repealed. It's only a few days since I posted a comment about the extended timescale for the repeal to come into operation (April 2020), remarking that it even allowed time for the repeal to be repealed. I doubt this has come about because someone read this blog. In fact, the official reason is that judicial review proceedings were being threatened, challenging the compatibility of the regulations with EU law, which of course is where this whole sorry episode started (with the copyright term directive and the perceived significance of the Arco lamps case, Case C-169/08 Flos v Semeraro).

Sadly, this doesn't mean that the government has seen sense. The website goes on to say:

The Government will launch a fresh consultation on revised transitional arrangements, including the date for implementing the repeal. A further announcement will be made when the new consultation is published.
I'll keep an eye open for it ... Pity if we don't the promised judicial review: that would have been much more interesting.

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Creative Commons for Patents

Creative Commons is usually associated - perhaps always associated - with copyright. But it goes further than that: I just happened across this Model Patent License, the title of which gives away its American origins although that's not a fatal flaw by any means. I thought readers might find the link useful, and so might I one day. I was tempted to include it in the IP module I am working on for the College of Law's Legal Practice Course, but it might be a bit left-field for that purpose.

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