Monday, 1 September 2014
Wednesday, 27 August 2014
What? This is the most outrageously protectionist idea I can recall ever hearing of. The MPI has often struck me as viewing intellectual property as a Good Thing without considering whether a lack of protection might be a better thing. So the Institute says:
The use without restrictions of trade secrets obtained through reverse engineering appears problematic, in particular in sectors where – other than in the case of software – no intellectual property protection is available, although considerable investments are made in the development of new products. Notable examples include the cosmetic industry, which regularly invests quite heavily in the development of perfumes, but where the know-how generated thereby can be decoded with relative ease through reverse engineering.
The unrestricted use of such know-how raises concerns that it could pose a substantial threat to the companies concerned, eventually leading to market failure whereby such goods would no longer be produced. Accordingly, it must be assessed whether the existing (quite problematic) prohibition on advertising such products as imitations or replicas should be replaced by other measures that are directly aimed at protecting the relevant interests.Perfumes? What a lousy example to use. As Ian Connor of Pinsent Mason says in Out-Law's commentary on the MPI paper, the evidence in the smell-alike cases showed that it was impossible to achieve an identical fragrance by reverse-engineering (and the fact that a cheap imitation couldn't use the expensive ingredients no doubt contributes to that). If there is an element of unfair competition in imitating fragrances, then it has to be dealt with as unfair competition: for goodness sake, don't try to bring trade secrets law to bear on it. In so far as trade mark law is part of the law of unfair competition, that approach has been tried, but just because it has failed doesn't mean that we need to try something else. And just because something isn't protected doesn't mean that there is a hole in the system that needs to be repaired.
I first encountered the idea of reverse-engineering in the context of the good old Morris Marina exhaust pipe - in other words, in the dispute that eventually gave us BL v Armstrong. Copyright was used to try to stop reverse engineering, because (unlike a smell-alike) you could make a perfectly serviceable and accurate copy of an exhaust pipe by measuring the relevant dimensions. Did the House of Lords say "oh, here's something that isn't protected, let's see if we can find a way to make the law apply?" Not at all. In fact the starting point was the opposite: here was something that copyright did protect, even against reverse engineering, and their Lordships were pretty clear that they thought this was wrong. (Lord Templemann and Lord Bridge, as I recall, to the fore: two judges who for several years resisted every attempt to expand the scope of intellectual property protection, whether in exhaust pipes, bottle shapes (as trade marks: Re Coca-Cola), sound recordings (CBS Songs v Amstrad), plastic toy bricks (Lego v Tyco), or television show formats (Green v Broadcasting Corporation of New Zealand). The majority in the House of Lords (Lord Griffith going about it in a different way, if I remember correctly) resolved the problem in the consumer's favour by reference to the "non-derogation from grant" principle known to landlord and tenant law - an even more egregious example, it has to be said, of using one law to solve a deficiency in another than the MPI's wish to use trade secrets law to solve an unfair competition problem.
The law should only give protection where there is a good reason for it. That, I think, is the "evidence-based policy-making" that Hargreaves was so keen on, and which the government seems to have forgotten about even before the ink was dry on the Professor's work (hence the increase in copyright term for sound recordings, and perhaps likewise the latest bunch of copyright "exceptions", or permitted acts as they ought properly to be called). There are limits to intellectual property protection for good reason. Some matter remains unprotected deliberately - for the simple reason that there is no justification for protecting it. There would be no incentive for anyone to do anything that they were not already doing, just a supernormal profit to be taken at the expense of the consumer. Consumer welfare in the strict economic sense is not the be-all and end-all of the matter: when you analyse this stuff as property, human rights become engaged, and a property owner should not lightly be deprived of it. But in the case of reverse engineering we are talking about matter which is not protected by property rights, and which is in the public domain where anyone can use it. It is not confidential, and to impose a confidentiality-style obligation on would-be users would be a huge retrograde step and one that takes absolutism in intellectual property to new heights.
Tuesday, 26 August 2014
The Government of India, vide its notification dated 1st August 2014 has amended the existing Trademark Rules, 2002, and the amended Rules are now referred to as the ‘Trade marks (Amendment) Rules, 2014’. The proposed amendments were initially notified and made available to public on 26th August 2013 inviting objection and suggestions from the public likely to be affected. Since, no objections or suggestions were received by the Govt. of India the proposed amendment were accepted and subsequently notified.
- The official filing fees for filing a trademark application in one class has been increased from INR ‘3,500.00’ to INR ‘4,000.00; and;
- The official fees to expedite the examination of an application for the registration of a trademark, has been increased from INR ‘12,500.00’ to INR ‘20,000.00’.
Sunday, 10 August 2014
reports a copyright case over the design of the iconic jumper worn by
Danish TV detective Sarah Lund (actress Sofie Gråbøl) which the Faroe
Islands-based manufacturer has lost. The court took the view that the
design was a traditional pattern hundreds of years old. That sounds
quite plausible: I don't know what evidence might have been offered, but
to claim that the design is an original one is a bit of a stretch.
report digresses into a discussion of a report in Vogue on Fair Isle
sweaters, which in fact are a completely different matter (by
definition, multi-coloured). And then, incredibly, the paper places the
Faroes equidistant from Scotland, Iceland and Denmark: two-thirds
correct, but where do they think Denmark is? Or have they forgotten that
Norway is no longer part of Denmark (and hasn't been since 1814).
Moreover, since the Faroes are part of the Kingdom of Denmark, it is
pretty pointless measuring the distance between the two - rather like
asking how far it is from Scotland to the United Kingdom (pending the
forthcoming referendum, of course).
Friday, 8 August 2014
Anyway, back to the citation system. Here's what it says:
ECLI is a uniform identifier that has the same recognizable formatIt gives a non-existent example of an ECLI. More useful would be to give a real one. How about ECLI:UK:SC:2013:18. Case number 18 of 2013 in the court formerly known as the House of Lords, or SCOTUK as we might call it, taking a leaf out of the American book (and perhaps demonstrating suitable contempt for New Labour's wanton destruction of tradition - but I digress). That would be Meltwater. I note that BAILII does not seem to have adopted the 'European' approach yet.
for all Member States and EU courts. It is composed of five, mandatory,
The elements are separated by a colon.
- ‘ECLI’: to identify the identifier as being a European Case Law Identifier;
- the country code;
- the code of the court that rendered the judgment;
- the year the judgment was rendered;
- an ordinal number, up to 25 alphanumeric characters, in a format that
is decided upon by each Member State. Dots are allowed, but not other
Thursday, 7 August 2014
World Intellectual Property Review reports Tesla settles row with Zhan Baosheng over trademark in China (but at what cost?).
The case reinforces what we probably all know - leaving your trade mark unprotected, enabling an opportunist to get in first and register it, can be an expensive mistake. Unfortunately, registering all the trade marks you might need is also expensive. Interesting, however, to note that the squatting problem has moved from the field of domain names (a few pence each) to trade marks (several hundreds of pounds each, at least). And while trade mark laws commonly contain use and good faith requirements, they are not cheap and easy to invoke.
Friday, 1 August 2014
Thomas Pink Ltd v Victoria's Secret UK Ltd  EWHC 2631 (Ch)
EUROPA - PRESS RELEASES - Press release - Protecting Intellectual Property Rights: Customs authorities detain nearly 36 million fake goods at EU borders in 2013