|Skating on thin ice? |
Kats can do it
Passionate about IP! Since June 2003 the IPKat weblog has covered copyright, patent, trade mark, info-tech and privacy/confidentiality issues from a mainly UK and European perspective. The team is David Brophy, Merpel, Jeremy Phillips, Eleonora Rosati, Nicola Searle, Darren Smyth, Annsley Merelle Ward and Neil J. Wilkof. You're welcome to read, post comments and participate in our community. You can email the Kats here
For the half-year to 31 December 2015, the IPKat's regular team is supplemented by contributions from guest bloggers Jani Ihalainen, Nikos Prentoulis and Mark Schweizer.
Birgit Clark is on Sabbatical till the end of the year
Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.
|Skating on thin ice? |
Kats can do it
|Headache? No, just|
second medical use ...
|Watching out for icebergs -- or ice cubes?*|
Case C 147/14 Loutfi Management Propriété intellectuelle SARL v AMJ Meatproducts NV, Halalsupply NV is a Court of Justice of the European Union (CJEU) ruling regarding trade marks containing both Arabic and Latin letters. It emanates from a reference asking whether the meaning of Arab words should be taken into account and give useful guidance for many trade marks that feature non-Latin script writes Jeremy.Many readers will be familiar with Uber, the on-demand ride-sharing platform which has revolutionised the concept of urban transport and which is in deep trouble in a number of EU countries due to its alleged non-compliance with laws and regulations governing on-demand transportation. Thanks to a Barcelona Court reference, the CJEU has been called on to enter the debate -- which goes far beyond taxis and concern the much broader relation between traditional and sharing economy, explains Katfriend Revital Cohen (Baker & McKenzie, Barcelona).Here's a note from Katfriend and occasional contributor Kevin Winters, who takes a look at a recent US copyright dispute concerning the alleged infringement of Michael Jordan’s iconic ‘”Jumpman” logo by Nike.Jeremy takes a look at Case C‑242/14 Saatgut-Treuhandverwaltungs GmbH v Gerhard und Jürgen Vogel GbR, Jürgen Vogel, Gerhard Vogel, a request for a preliminary ruling to the CJEU made by the Landgericht Mannheim (Germany), on a Community plant variety matter concerning reasonable compensation and farmers’ freedom to propagating purposes under Article 94(1) of Regulation 2100/94.Annsley gives an account of US Supreme Court’s decision in Kimble v Marvel, relating to a toy-patent allowing children to role-play as a "spider person" by shooting webs "from the palm of [the] hand" by way of pressurized foam string.Darren sinks his claws in the latest decision in the apparently endless Hospira v Genentech saga. In this episode (Hospira UK Ltd v Genentech Inc  EWHC 1796 (Pat)), Hospira is seeking to invalidate all of Genentech's secondary patents relating to the cancer drug trastuzumab (Herceptin) so that it can market a generic version now that the SPC for the basic patent has expired.Debate is currently being undertaken at the level of EU institutions as to whether the current legislative framework in the area of copyright should be updated, with initiatives characterised by a complete lack of support on the side of the public opinion. Is this the right direction to take, wonders Eleonora.Once every three months or thereabouts, the IPKat and Merpel post an update of the goings-on both on this weblog and on other IP-flavoured blogs to which members of the IPKat's blog team contribute. Here’s your chance to know all the relevant IP places of the blogosphere and to get to know the new guest and resident kats.In the next few weeks, Jeremy will be posting on a number of cases that are still of interest though they are no longer "hot news", these being decisions on which was unable to comment at the time they were published since he was up to his whiskers in conferencing and foreign travel. The first of these is GO Outdoors Ltd v Skechers USA Inc II  EWHC 1405 (Ch), a 19 May decision of Mrs Justice Rose, sitting in the Chancery Division, England and Wales, on an appeal from a decision of the UK Intellectual Property Office. The point, there, was the inherent distinctiveness of “GO walking” and “GO running” for rucksacks and bags (Nice Class 18) and retail services connected with the sale of clothing and accessories (Class 35).Another in Jeremy's series of not-quite-so-recent cases that he is writing up now because they flashed past him when he was too busy to grasp hold of them a couple of months ago is Allfiled UK Ltd v Eltis & 16 Others  EWHC 1300 (Ch), a 19 May 2015 decision of Mr Justice Hildyard, in the Chancery Division, England and Wales, in an action seeking an interim injunction to stop a total of 17 defendants -- former directors and employees and three companies -- from using its confidential information and intellectual property and from carrying on a trade similar to its own.In his debut post, new guest Kat Nikos tells us of an interesting story involving the (perhaps) first trade mark application refusal by the Greek Patent and Trade Mark Office. The application at stake belonged to an association meant to help lawyers and freelances to comply with (or survive) the Freelancers’ Social Security Organization. Unfortunately, it also included the latter organisation’s trade mark.Viacom subsidiary TV Land has just decided to pull the plug on a current re-run on US screens following the tragic Charleston church massacre. While the Confederate flag is not a brand in the commercial sense, both flags and brands attract loyalties and generate passions that are often irrational and difficult, if not impossible, to suppress, reflects Jeremy.Matti Makkonen, the Finnish father of SMS, passed away this week. He never patented his revolutionary invention, and diverging approaches to IP might be one of the reasons why creating a Silicon Valley in Europe is as easy as finding a Boldrin/Levine book based on a strict, scientific research. The floor goes to Neil.The Sofa Workshop Ltd v Sofaworks Ltd  EWHC 1773 (IPEC), is a recent decision of Judge Richard Hacon in the Intellectual Property Enterprise Court, England and Wales. As Jeremy recounts, it deals with genuine use, acquired distinctiveness, infringement, passing-off, and many, many sofas.Jani introduces himself with The Ukulele Orchestra of Great Britain v Clausen & Another (t/a the United Kingdom Ukulele Orchestra)  EWHC 1772, another trade mark decision regarding “The Ukulele Orchestra of Great Britain” soundly opposing The United Kingdom Ukulele Orchestra.Can the unauthorised use of copyright-protected works amounting to nearly 42' in a 95' film be considered fair use under §107 of the US Copyright Act? This, together with other issues, is what Arnold J had been asked to determine in Sony/ATV Music Publishing LLC & Another v WPMC Ltd & Another  EWHC 1853 (Ch) (1 July 2015), an intriguing case decided earlier this week, having to do with the Beatles and a documentary concerning their first US concert ever. Eleonora tells all.Jeremy pens this post on red roses and black cabs. Red roses are those which are included both in UK Labour and Scottish Labour Party’s trade marks, with the first not so happy with the second using a red rose, so that a dispute arose. The black cabs are those examined by Richard Spearman QC (sitting as a deputy Judge of the Chancery Division, England and Wales) in The London Taxi Corporation Ltd v Frazer-Nash Research Ltd & Ecotive Ltd  EWHC 1840 (Ch), a curious tale of taxi look-alikes and bizarre surveys.******************PREVIOUSLY, ON NEVER TOO LATENever too late 52 [week ending on Sunday 14 June] - EU TM reform | Motivate Publishing FZ LLC and another v Hello Ltd | EPO’s Inventor of the Year: poll results | New network for new IP people | Delfi v Estonia | UPC fees | Smith & Nephew Plc v ConvaTec Technologies Inc | Canary Wharf Group Ltd v Comptroller General of Patents, Designs and Trade Marks | Actavis v Lilly | Council of Europe v EPO | Freedom of Panorama | TM reputation and brain scan | Case management decisions in the Lyrica case.Never too late 51 [week ending on Sunday 14 June] - GIs in France | IPBC Global 2015 | EPO recap | EPO and OAPI bff? | 3-D Lego trade mark | Garcia v Google | B+ subgroup | EU trade mark reform and counterfeits in transit | French v Battistelli | US v Canada over piracy | UK Supreme Court in Starbucks | BASCA v The Secretary of State for Business | Patent litigation, music, politics | Product placement in Japan.Never too late 50 [week ending on Sunday 7 June] - Swiss claims | Italian-sounding trade marks for cosmetics | “IP litigation and Enforcement” event | Saving WiFi | Spy scandal at the EPO | Rihanna v DC Comics | KitKat trade mark | Taste trade marks in the Netherlands | Connectivity and human rights | Trade secrets, client confidentiality and privilege | 3-d printing and counterfeiting | Ericsson v Apple in the FRAND battlefield.Never too late 49 [week ending on Sunday 31 May] - Another copyright-exhaustion-and-software reference to the CJEU | ORO trade marks and GC | Patent Reform in EU | Copyright in the Bahamas | More and more references to the CJEU: communication to the public and linking | Trade secrets and the FoMo phenomenon | Independence of EPO’s BoA.
|Two heads can be more effective than one,|
at least if they can think independently ...
It is key that the response to the Nagoya Protocol is from across the horticulture sector and in collaboration with Defra and NMRO. The RHS, will therefore, over the next few months be engaging with key stakeholders from horticulture, Defra and National Measurement and Regulation Office (NMRO) to raise awareness on the Nagoya Protocol, to formulate a shared response and to work towards informing the process of ‘best practices’. This will include holding a meeting for those with concerns about or an interest in the Protocol and the legislation to share their views with Defra and the NMRO, and this will form the basis of how UK horticulture can respond constructively to the legislation.
This meeting will be held at RHS Garden Wisley on 27 July with representatives of Defra and NMRO being present. Those interested in attending this meeting please contact Laura Robins on firstname.lastname@example.org with your name and email address.
|The 'bad old days' of clean car technology ...|
This Kat reported that August that German and Dutch associations of plant breeders had challenged EU Regulation 511/2014 (the Regulation implementing the Nagoya Protocol and setting out compliance measures for EU users) before the General Court in order to seek its annulment.
Details at that time were a little patchy, although some helpful comments provided a little more information. Now, our eagle-eyed blogmeister has noticed from an e-Bulletin from Herbert Smith Freehills (to whom a very grateful Katpat) that the General Court has rejected both challenges as inadmissible.
The German action was filed by Ackermann Saatzucht GmbH & Co. KG and 16 other persons; the Dutch action was filed by ABZ Aardbeien Uit Zaad Holding BV and 15 other persons, all active in the plant breeding sector.
The two decisions, T‑559/14 and T‑560/14, are basically the same. They are quite brief, and you can read them (in English!) here and here. They are probably of more interest for an understanding of who may admissibly challenge an EU Regulation than for enthusiasts of the Nagoya Protocol, although the evidence is that there are more of the former than the latter among the readership of this blog (somewhat to this Kat's regret).
In both cases Council and Parliament requested that the challenges be ruled inadmissible, and the Court agreed. The Court noted that the Regulation was a legislative act, and not a regulatory act. Therefore, there were only two routes by which a person might seek its annulment - either the Regulation was addressed to them (which it was not) or if the "act is of direct and individual concern to them". The Court considered that
It has consistently been held that persons other than the addressees of decisions can claim to be individually concerned only if that decision affects them by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee.The Court then held:
Thus, it is clear that the applicants are affected by the contested regulation only in their objective capacity as users of genetic resources or traditional knowledge associated with genetic resources, as defined in Article 3 of the contested regulation, in the same manner as any other user coming within the scope of the contested regulation. No particular quality or fact characterises them in relation to other persons coming within the regulation’s scope.Accordingly, the actions were held inadmissible.
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ 2001, L 167, 10-19The "OJ" reference relates to the issue of the Official Journal of the European Union that contains the document, together with its printed page numbers.
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