Thursday, 7 January 2016

NIPC Inventors Club: Joy

My good friend Jane Lambert has written an excellent review of the film, Joy, about the trials and tribulations of an inventor trying to get her idea to market, on her NIPC Inventors Club blog. Go and read it, then go to see the movie!

What Could Have Entered the Public Domain on January 1, 2016?

What Could Have Entered the Public Domain on January 1, 2016?  asks the Electronic Frontier Foundation, in a piece designed to highlight the harmful effects of the extension of U.S. copyright protection from 56 years to life-plus-70 which happened as recently as 1978, the year in which I passed my Law Society Part II exams (well, most of them in the August of that year, after one attempt which was a complete failure in the February). That was when the 1976 Act came into operation, finally bringing the U.S. into the Berne Convention family.

My eye was caught by the reference to one of my favourite records,  Kind of Blue, recorded in 1959, so copyright would have expired this year if the old rules had still applied. Extending the copyright term is always contentious, and it seems to be accepted that it has to be back-dated so that existing works get the benefit of the longer protection, notwithstanding that the generally-accepted justification for copyright (that it encourages copyright owners to create more) is hardly served by increasing protection for things that have already been created, indicating that there was already sufficient incentive at the time; and in some cases the author, being dead, is in no position to respond to a new incentive anyway.

The EFF article doesn't make it absolutely clear whether it refers to copyright in the music or the phonogram. It seems to be more about the music, but copyright in the recording is also important, certainly in our copyright law - and, intriguingly, there's a very close relationship between the two, because Kind of Blue is a sustained piece of improvisation, so the sound recording in a sense is the musical work.

Here, the Copyright Act 1956 would have given the recording protection for 50 years from release, so it would have expired at the end of 2009. The music, notwithstanding its improvisatory nature, would have been protected for the life of the composer plus fifty years, a much longer term already than that provided for in U.S. copyright law. According to the sleeve notes, all the pieces on the album were written by Miles Davis, except two attributed to Miles (died 1991) and Bill Evans (died 1980), so even before the idiotic extension of copyright protection in the mid-90s copyright in the music would have run until 2041 and will now run for 20 years longer. The EFF's point, that if you wanted to use a Davis piece in a film you'd have been free to do it in the U.S. had it not been for the 1976 Act, never had legs in the U.K. (But if you want to use it that way, what's wrong in principle with paying for it?)

As for copyright in the phonogram, that would have expired 50 years after the end of the year of release - 2009. That's just a little too early to have been caught up in the ludicrous Cliff's Law extension of copyright in sound recordings, and clearly too late to give Miles any incentive to get his trumpet out again.

None of this, however, has stopped it from being available on YouTube.


Thursday, 3 December 2015

SOLO IP for sole and small IP practices: A tribute to Jeremy Phillips by Peter Groves

SOLO IP for sole and small IP practices: A tribute to Jeremy Phillips by Peter Groves: On Wednesday 25th, I had the honour of speaking at Jeremy’s penultimate event before his retirement, the annual IP editors and publishers lu...

Wednesday, 2 December 2015

Is this the worst brand name in the world? - BBC News

Is this the worst brand name in the world?  asks the BBC in a piece by Justin Rowlett whom I dealt with many years ago over a Panorama programme about price fixing in the motor trade in which I appeared. The piece highlights the lack of portability of some trade marks (I think it's the wrong use of the word "brand", actually). Nothing new, except that the example he starts with is a new one, and one of the most egregious ones I can remember seeing. I used to have a book full of such disasters, a freebie from an INTA annual meeting, but I lent it to a client many years ago and never got it back - nor did I get anything else from the client, for that matter.

Thursday, 15 October 2015

Press release: Intellectual property assets of Matchchat are for sale

I receive occasional press releases on IP topics, and usually I ignore them because they don't strike me as being what people come to my blog to see. Indeed, often they aren't the sort of thing that I want people to come to my blog for. However, this one seemed more potentially relevant to readers, and as cutting and pasting is not hard work I thought I'd share it - and I have a couple of clients who might find it interesting too.

The intellectual property assets of Matchchat, a company specialising in fan engagement, are for sale from Metis Partners, an award-winning, commercial intellectual property consulting firm.

Matchchat is a leading fan engagement solution provider that has been developing and offering a suite of software tools relating to user interaction and native advertising. It has achieved around 2 million page views a day and 50-60 million impressions per month at its peak. With around 30,000 registered users, Matchchat has successfully established a loyal following amongst sports fans.

Originally established as a fan engagement platform, Matchchat’s five products enable fans to read and comment on web content about their favourite sports teams, as well as vote on sports-related polls. The Company has expanded into the native advertising market segment by launching its Now Native brand.

Matchchat’s products have made the experience of serving an online ad much more technically reliable, improved the ease of navigation as well as the overall user experience and increased the time users spend on webpages. High-quality source code has helped to create a seamless experience for the user, and it has been developed in an incredibly efficient manner.

Assets linked to Matchchat include software source code and intelligent recommendation algorithm, goodwill in the brand and reputation, databases and data, branded domain names and website content and organisational knowledge including a codebase wiki guide.

Nat Baldwin, Head of Brokerage Services at Metis Partners, said: “This is a unique opportunity to purchase the IP assets behind Matchchat’s exciting fan engagement software, which have already attracted considerable interest. Matchchat’s IP assets present an attractive commercialisation opportunity for a potential purchaser.

We believe that Matchchat’s IP assets are likely to hold appeal for companies involved in media, sport, entertainment, social media, software development, e-commerce and advertising and marketing industries.”

All offers, notes of interest and /or requests for further information should be directed to Morven Fraser of Metis Partners by Thursday 22nd October at noon, morven@metispartners.com or on 0141 353 3011. Website: www.metispartners.com.

The sale of Matchchat’s IP assets reinforces Metis Partners’ position as a vendor of IP assets from leading software and technology companies. Metis Partners has had recent success selling IP assets from a range of widely-recognised social media, software and app businesses, including the IP assets of businesses such as Polaroid Blipfoto, Weeworld and Blinkbox Music.

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
http://ipkitten.blogspot.com/2015/10/glenn-gould-and-case-for-moral-rights.html

 -- via my feedly.com reader

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.
 

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