Friday, 27 March 2015

Jeremy Phillips talks to Law Vox by Oxford Academic (OUP)

I am hugely enjoying this podcast, an interview with Jeremy Phillips produced by the publisher of so many IP books (including many of Jeremy's). It's highly informative and a great explanation of the importance of intellectual property law, although there are some themes that he might have explored such as the immense growth in the power of intellectual property rights ... although he does say that most trade marks are not intellectual property, a very useful proposition. When I have listened to it fully, and perhaps a couple of times, I might post more.
(Actually, is it right to call it a podcast if it cannot be downloaded?)

Monday, 16 March 2015

Intellectual property protection for Russian armaments

The Moscow Times reports that:
The [Russian] Defense Ministry is working on a system to keep track of Russian military innovations at home and abroad in an attempt to wrestle [sic] control of copyrights on Soviet-era equipment away from a global industry of imitators, state news agency RIA Novosti reported Wednesday.
Compared with other events in Russia, that's not really very worrying but it certainly gave me pause for thought. Do they really mean 'copyrights' (or even 'copyright')? Copyright is of course a feeble way to protect industrial designs these days, in the UK and in most other countries too. But patents would be even weaker, because the end of the Soviet era is more than a patent's lifetime ago ... To my surprise, though, I discovered that MT Kalashnikov (who died only in 2013, at the age of 94) was applying for patents with priority dates as recent as 1997 (this one for example - but why did a Chinese patent come up first on Espacenet?) and his son Viktor seems to be keeping up the - er - good work. So perhaps it's the words 'Soviet-era' in that quote that are questionable.
Lieutenant-General Kalashnikov has seemingly been responsible for arming most of the world. His inventions must constitute a large part of the production of the world's second-biggest arms exporter, albeit presumably at the lower end of the price scale: you have to sell a lot of assault rifles to make as much money as you would from a single jet fighter sold to, for example, India. It's probably not the jet fighters the Russians are worried about, though I recall that there were a lot of Chinese reproductions of Soviet aircraft around some time ago (just like the reproductions of various vehicle designs which the Chinese motor industry specialises in these days). Indeed, the Moscow Times story makes clear that the problem the Russians face is that sanctions mean they can't sell AK-47s like they used to, and that production in former Warsaw Pact countries, and China, where fraternal munitions factories were established during the Cold War (the First Cold War, as we might soon be calling it) is filling the gap. A large part of the market is probably in the USA, which is a nice paradox. (The manufacturer's website tells me, interestingly, that its Saiga-12 Mod. 340 sporting shotgun is widely used by law enforcers in the US, which may be a more significant piece of information: and Saiga hunting rifles are apparently very popular in the US too). Maybe Lenin's theory of imperialism could explain Russia's territorial expansionism, creating new markets for weapons among the little green men ...
Let's get back, as quickly as possible, to intellectual property. There might be some relevant patents: there might be some relevant copyright, in some countries: there might be some of the more exotic intellectual property rights like gebrauchsmuster. Design right in the UK would be no help, because it would have expired and in any case the designer was not an EU citizen nor was he habitually resident in the EU, and articles to his designs were not first marketed here. Registered designs are apt to protect the appearance but not the function of an article, so while they could be of some help (the appearance of the AK-47 is certainly important) it will be small - and even if relevant registrations were ever obtained they are likely to have expired long ago. Perhaps, unlikely as it seems, copyright is the manufacturer's strongest suit.
Unless ... what about trade marks? Both the surname of the inventor and the familiar designation of the weapon are highly distinctive. They meet all the requirements here for registration as a trade mark, leaving aside the question of public policy and morality I suppose, although the fact that 'AK' stand for Автома́т Кала́шникова (Kalashnikov automatic) might create a descriptiveness problem, against which 66 years' use might be an effective counterargument. But there's nothing I can find on the UK or EU registers that might assist, which is a rather surprising omission. Of course it is possible that the Polish, Bulgarian, Romanian, Serbian and Chinese manufacturers referred to in the Moscow News article are not using either trade mark - but I bet the retailers in the US are. Which makes me wonder whether Russian-owned US trademarks can easily be enforced. I think that in the English courts an order for security for costs could put a spanner in the works - is there something similar in the US?
All of this highlights the important point, that it is the activities of foreign undertakings that are worrying the Russians. No point in bringing an infringement case in Syria or Iraq against whoever is supplying ISIL: this is a problem that can only be dealt with at the manufacturer level, and that won't affect the huge second-hand trade. Perhaps the Russians could persuade some of the offending manufacturers to stop, although unless they have a lot more legal protection in Poland, Bulgaria and Romania than they seem to have here they will be hard-pressed. Maybe the Serbs will be more open to the Russians' blandishments. The chances of stopping production in China are, one assumes, at best negligible.
If there were any point in trying to use legal steps to stop this trade in fake firearms in the UK, an action for passing off would seem to be the logical way to go, in the absence of anything better: and it could stand an excellent chance of success. But I don't think the UK is really their main worry, notwithstanding that the manufacturer's website mentions that it exports products to us. Precisely what, I don't know, but Izhmash, the distinctly Soviet-era name of the manufacturer (Izhevsk Machinebuilding Plant, or Ижевский Mашиностроительный Завод) before it merged with Izhmech (don't ask) to become a wonderful double entendre, the Kalashnikov Concern, made motorcycles which were sold here under the Cossack and Neval brands, along with motor vehicles and other mechanical items. The company's motorcycle (dating from 1928), the IZh 1, "owed a little" to contemporary motorcycles made by the German company DKW, according to Andy Thompson's Cars of the Soviet Union (Haynes Publishing, Somerset, UK, 2008), p.180, which rather brings us back to the start of this story: what goes around comes around, or Как ау́кнется — так и откли́кнется. And intellectual property law is not, I submit, the place to look for a solution, even if they do have any useful rights.

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