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."

'via Blog this'

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