Tuesday, 29 July 2014
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.
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  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.
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.
Wednesday, 23 July 2014
Friday, 18 July 2014
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!
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.
Tuesday, 24 June 2014
Friday, 13 June 2014
Monday, 9 June 2014
‘The time value of money received by an employer following theWLR Daily, 23rd May 2014
vesting of an invention by an employee was not a benefit derived by the
employer for the purposes of section 41(1) of the Patents Act 1977.’
Friday, 6 June 2014
What's the problem? Surely the names are far enough apart? Well, it wasn't just the name: there was a word-only CTM, but claims relating to that were dropped early on for fairly obvious reasons. In the passing-off claim, the claimant alleged that the get-up and name of Aldi’s product were, in combination, too similar to those of their product. Just look at the photos in the annexes to the judgment! A substantial
number of consumers would mistake Miracle Oil for Moroccanoil, or assume that they shared a common manufacturer or that there was some other trade connection between them.
The evidence showed that the name ‘Moroccanoil’ was distinctive of the claimant's product in the UK: but the get-up without the name could never have become distinctive because it had never been before the public on its own. It was not a Jif Lemon type of case in which the public would not notice the brand name - although clearly it was an attempt to protect get-up rather than product name. The name was the important element, so that was where the goodwill in the business would be found, although the get-up also played a part.
There was nothing to show that members of the public might assume that Miracle Oil and Moroccanoil were the same thing, that they came from the same manufacturer, or that they were otherwise commercially linked, for example by a licence. Even if any members of the public would be confused there would be too few of them for the claimant's goodwill to be damaged.
The defendant had intended that Miracle Oil would bring Moroccanoil to mind. The judge considered it had succeeded. That it had done did not make it passing off. There might be problem with rights in the design, and the public might think the way the packaging of the one brought the other to mind to be cheeky, but that wasn't unlawful. There would be no relevant false assumption in the mind of the purchasers, not even initial interest confusion (which I thought didn't exist in European Union trade mark law anyway). Without evidence of a misrepresentation the claim failed, illustrating (if illustration were needed) of the impotence of passing off law to protect against supermarket own-brands. Perhaps copyright and designs law (especially if there had been a registered design) would have filled the gap, and a trade mark registration for the particular colour of the label would have been pretty conclusive, but on the facts of the case these items were not in the claimant's armoury. It shows how important it is, in this day and age, to ensure you collect the widest possible range of intellectual property rights - if the claimants here thought a word trade mark was going to do the job, they were sadly mistaken, and Aldi could easily what Americans might call an end run round the one distinctive mark the claimants did have.