Wipo To Launch Probe

WIPO has announced that it is to launch its origin unmanned mission into space. The programme, run inwards conjunction amongst NASA together with the WTO, aims to railroad train extraterrestrials nearly the importance of potent intellectual holding rights equally business office of an economically feasible marketplace economy.

It volition bear a selected library of intellectual holding materials, including the text of the Statute of Monopolies together with a re-create of the BASS merchandise score (the origin to live on registered), equally good equally to a greater extent than up-to-date materials such equally a re-create of the TRIPs Agreement together with a sum ready of WIPO’s pop cartoon guides to IP law.

The expected launch appointment is 26 Apr 2009, coinciding amongst World Intellectual Property Day.

selflessly volunteers to live on WIPO’s origin goodwill intellectual holding ambassador inwards space.

Dutch Courtroom Enforces Creative Common Licence

is grateful to Jonathan Mitchell QC (Murray Stable together with Scottish Commons projection lead) for tipping him off nigh a Dutch illustration enforcing a Creative Commons licence. Jonathan writes:

A Dutch magazine, ‘Weekend’, illustrated an article alongside photographs taken from the photographer’s Flickr populace website at http://flickr.com/photos/adamc1999/ . As is usual on flickr, the photographs were published nether a Creative Commons licence which did non permit commercial re-use, together with in that place was a link to this licence on the webpage. The photographer, Adam Curry, sued Weekend’s publishers, Audax, for copyright infringement inward the Netherlands. Audax argued that it was misled past times the flickr notice 'this photograph is public'; that the link to the CC licence was non obvious; together with that Weekend had assumed inward practiced organized faith that no authorisation from Curry was needed. Moreover, Curry had non incurred whatsoever damages past times the publication of the photos inward Weekend, since the photos were freely available to the populace on flickr.The Court rejected Weekend's defence, sustaining the declaration that the termination of the link to the Creative Commons licence was that the limitations inward that licence applied, together with awarded damages of €1000. The determination is noteworthy equally the outset determination of a European courtroom on the practical termination of a Creative Commons licence on fabric published on the mesh together with dealing alongside the mutual supposition that whatsoever such fabric automatically falls into the populace domain.The total text of the Dutch court’s determination is at http://tinyurl.com/q4fqh (click Printbarie versie).

Key passage inward English:

"All 4 photos that were taken from www.flickr.com were made past times Curry together with posted past times him on that website. In principle, Curry owns the copyright inward the 4 photos, together with the photos... are discipline to the [Creative Commons] licence . Therefore Audax should uncovering the weather condition that command the purpose past times 3rd parties of the photos equally stated inward the licence . The Court understands that Audax was misled past times the notice 'This photograph is public' (and hence did non accept complaint of the weather condition of the licence ). However, it may live on expected from a professional person political party similar Audax that it comport a thorough together with precise exam earlier publishing inward Weekend photos originating from the internet. Had it conducted such an investigation, Audax would stimulate got clicked on the symbol accompanying the notice 'some rights reserved' together with encountered the (short version of) the licence . In illustration of uncertainty equally to the applicability together with the contents of the licence , it should stimulate got requested authorisation for publication from the copyright holder of the photos (Curry). Audax has failed to perform such a detailed investigation, together with has assumed likewise easily that publication of the photos was allowed. Audax has non observed the weather condition stated inward the licence [...]. The claim [...] volition hence live on allowed; defendants volition live on enjoined from publishing all photos that [Curry] has published on www.flickr.com, unless this occurs inward accordance alongside the weather condition of the licence ."

There’s a comment at http://tinyurl.com/zc8jr .

The Creative Commons UK website at http://www.creativecommons.org.uk/ seems to live on out of committee at the moment, only its international site at http://creativecommons.org is OK. It late published a Scottish edition of its licences together with an English linguistic communication edition should live on published real shortly.

realises that this is an of import illustration together with that the courtroom does brand reference inward the paragraph quoted inward a higher house to the damage of the licence. However, the courtroom starts from the seat that this is a move that is protected past times touchstone copyright together with that’s where the protection against commercial purpose stems from. The existent seek of Creative Commons licences volition live on when the exceptions that they endeavor to impose are set earlier the courts.

Friday Flashes - A Quick Round-Up

Australian IP amendments larn to House

Australian lawyer, patent attorney & IP strategy consultant Duncan Bucknell has posted a authorities annotation on the Intellectual Property Laws Amendment Bill 2006, which was introduced yesterday into the House of Representatives of the Australian Commonwealth Parliament. Proposed amendments to the Patents Act include (i) clarification of the prior usage defense forcefulness to infringement; (ii) compulsory patent licences existence ordered nether the Trade Practices Act; (iii) the possibility of exemplary damages for patent infringement; (iv) a Bolar provision (a defense forcefulness to pharmaceutical patent infringement inward honor of unauthorised activities directed to obtaining regulatory approval). Duncan's authorities annotation contains links to all relevant legislative materials too press releases.

likes Duncan's website, which is a model of clarity compared amongst around he visits.


A miracle for a client

IPKat friend too IP/IT enthusiast Justin Patten (Human Law) reports that his client, creative someone Ed Miracle, has settled his copyright infringement claim against the publishers of Thomas Friedman's The World is Flat, which misappropriated i of his paintings ("I Told You So", left) for the front end cover. Details of Justin too of the representative itself tin survive establish on his weblog here.


Blizzard sued yesteryear WOW guide author

IP scholar too games enthusiast Yee Fen Lim has drawn the IPKat's attending to this intelligence especial from Gamespot on a dispute betwixt Blizzard Entertainment, its bring upwards companionship Vivendi Universal too the Entertainment Software Association (ESA) too 24-year-old Brian Kopp of Bronson, Florida every bit to whether eBay should survive ordered to halt auctions of Kopp's volume "The Ultimate World of Warcraft Leveling & Gold Guide", this existence a manual for players of a massively multiple online role-playig game (MMORPG) amongst wizards, warriors too monsters that has attracted a next of vi meg subscribers worldwide since it debuted inward 2004.

Blizzard, Vivendi too the ESA repeatedly sent eBay takedown notices nether the Digital Millennium Copyright Act, citing copyright too merchandise grade infringements. The auction giant's full general policy is to halt auctions when it receives such complaints too to suspend a user's concern human relationship afterward it racks upwards a sure enough issue of warnings. Kopp, who denies infringement, continues to sell the volume through around other website. The dispute continues.

Ipkat Competition

On twenty June 2006, CLT is running a conference entitled Sharing Names (full programme available here). The conference, which takes house at the Cafe Royal, London, investigates the problems that tin transportation away occur when the same hollo or merchandise grade is used past times multiple parties together with how these issues tin transportation away last resolved or avoided.

Issues to last considered include:

• Honest concurrent use
• The upshot of prior co-existence
• Collective marks together with articulation ownership of marks
• Infringement through utilization of the same hollo on (i) unlike goods together with (ii) the internet
• Defences inwards shared hollo situations
• Shared hollo transactions, including (i) co-branding; (ii) splitting merchandise marks - contest concerns together with (iii) sublicensing

Speakers are:

• David Landau (UK TM Registry)
• Arnaud Folliard-Monguiral (OHIM)
• Dev Gangjee (LSE)
• Belinda Isaac
• Simon Chapman (FFW)
• Patricia McGovern (P McGovern & Co)
• Lindsay Lane (8 New Square)
• Michael Bloch QC (Wilberforce Chambers)
• Isabel Davies (Howrey)
• Neil Wilkof (Herzog Fox & Neeman)

The normal toll for admission is £495+VAT, inwards furnish for which attendees volition have 6 lovely CPD points, simply the IPKat has a free place to break to the individual who roughly effectively completes his gruelling task.

The gratis house volition last given to the individual who comes upward amongst the best anagram of whatever one of the next damage (multiple attempts are allowed though):

• Elizabeth Emanuel
• Coca Cola
• Shared name
• Essential function
• Office for Harmonisation inwards the Internal Market (Trade Marks together with Designs)
• Directive 97/55/EC of European Parliament together with of the Council of half-dozen Oct 1997 amending Directive 84/450/EEC concerning misleading advertising then every bit to include comparative advertising

Send your anagrams here. Answers must last inwards past times 1pm on Midweek 12 April.

Does Bovermij Bovver You? It Certain Bovvers Me

Yet unopen to other Opinion from the European Court of Justice, this fourth dimension from Advocate General Sharpston, making what the IPKat thinks must live on his debut inward an IP matter: it's Case C-108/05 Bovemij Verzekeringen NV v Benelux-Merkenbureau.

Bovemij applied to register the give-and-take EUROPOLIS equally a Benelux grade for diverse services, including insurance, fiscal affairs as well as move arrangements. The Benelux Trade Mark Office (BBM) told Bovemij it was provisionally refusing registration on the Blue Planet of lack of distinctive character. Bovemij retorted that the sign had been lawfully used equally a grade inward merchandise since 1988 yesteryear its subsidiary, Europolis BV. "So what?", said the BBM as well as refused the application.

Bovemij appealed to the Hague Regional Court of Appeal on the ground that fifty-fifty if EUROPOLIS wasn't distinctive when the application was origin made (what it was), it had popular off as well as then yesteryear the fourth dimension it had to live on considered. The courtroom was certain that the grade wasn't inherently distinctive, but had its doubts nearly the acquisition of distinctiveness bit, as well as then it stopped the exhibit as well as sent the next questions to the ECJ for a preliminary ruling:

"(1) Must Article 3(3) of the Trade Marks Directive live on interpreted equally pregnant that inward lodge to commence distinctive graphic symbol (in the introduce instance through a Benelux merchandise mark) equally a termination of use, equally referred to inward that provision, it is necessary that the sign live on regarded equally a merchandise mark, earlier the appointment of application, yesteryear the relevant world throughout the Benelux territory and, therefore, inward Belgium, the Netherlands as well as Luxembourg?

If the answer to interrogation 1 is inward the negative:

(2) Is the status for registration set downwardly inward Article 3(3) of the Trade Marks Directive satisfied, for the purposes of that provision, if the sign, equally a termination of the usage made of it, is regarded equally a merchandise grade yesteryear the relevant department of the world inward a substantial percentage of the Benelux territory as well as tin this substantial percentage be, for example, the Netherlands alone?

(3)(a) When assessing distinctive graphic symbol acquired through use, inside the pregnant of Article 3(3) of the Trade Marks Directive, of a sign – consisting of ane or to a greater extent than words of an official linguistic communication inward the territory of a Member State (or, equally inward the instance inward point, the Benelux territory) – is it necessary to receive got into concern human relationship the linguistic communication regions inside that territory?

(b) For registration equally a mark, should the other requirements for registration live on satisfied, is it sufficient if/required that the sign live on regarded equally a merchandise grade yesteryear the relevant department of the world inward a substantial percentage of the linguistic communication part of the Member State (or, equally inward the instance inward point, of the Benelux territory) inward which that linguistic communication is an official language?".

Advocate General Sharpston advised the ECJ to dominion equally follows:

"Questions 1 as well as 2

It is non necessary, for the purposes of assessing acquisition of distinctive graphic symbol of a give-and-take grade through usage nether Article 3(3) of the Trade Marks Directive, to receive got regard to the entirety of the Benelux territory (Belgium, the Netherlands as well as Luxembourg) if for linguistic reasons the relevant flat of persons, equally previously defined for the purposes of Article 3(1), is to live on found only inward parts of that territory.

Question 3

Linguistic communities inward a Member State or inward the Benelux territory should live on taken into concern human relationship inward assessing acquired distinctive graphic symbol through usage of a sign consisting of give-and-take or words.

Where a give-and-take grade would autumn to live on refused registration equally devoid of whatsoever distinctive graphic symbol (Article 3(1)(b)) and/or because it consists alone of a give-and-take or words that are descriptive inward a detail linguistic communication (Article 3(1)(c)), that grade may only live on registered nether Article 3(3) where it tin live on shown that the grade has acquired distinctive graphic symbol through usage throughout the relevant linguistic community (namely, of the Member State, or of the Benelux territory taken equally a whole)".

In other words, piece for Community merchandise grade (CTM) purposes a grade must live on shown to receive got acquired distinctiveness throughout the territory of the CTM earlier it tin live on registered, no such dominion applies for national as well as regional merchandise marks. As the Advocate General said, having cited Case T-91/99 FordMotor Company v OHIM (OPTIONS) [2000] ECR II-1925:

"44. The BTMO’s seat – namely that the sign must live on regarded equally a grade throughout the Benelux territory earlier it tin live on registered - is based on Ford. That instance was concerned amongst whether a grade had acquired sufficient distinctive graphic symbol through usage to live on registered equally a Community merchandise grade nether Article 7(3) of the Community Trade Mark Regulation. It seems to me that the rationale for the territorial assessment applied inward Ford is non appropriate when determining whether distinctive graphic symbol through usage has been acquired yesteryear a national grade nether the Trade Marks Directive.

45. The Community merchandise grade as well as national merchandise marks are conceptually different. If a grade is to live on given Community-wide recognition inward the damage provided for yesteryear the Community Trade Mark Regulation, it is reasonable to involve the mark’s possessor to demonstrate distinctive graphic symbol acquired through usage over a greater geographical area. The Community merchandise grade has a unitary graphic symbol throughout the Community. National registration of a merchandise grade simply gives it that graphic symbol throughout the Member State inward question. It is important that Article 7(2) of the Community Trade Mark Regulation states that Article 7(1) is to apply notwithstanding that the grounds of non-registrability obtain inward only percentage of the Community. There is, however, no equivalent to that provision inward Article iii of the Trade Marks Directive. Because the Community merchandise grade is a unitary grade which, if registered, volition live on effective throughout the territory of the Community, it is correct to impose the status contained inward Article 7(2). Such a grade ought non to live on registered if at that topographic point exist, inward whatsoever percentage of the Community, grounds for non-registration. The same considerations produce non apply to the registration of national merchandise marks equally harmonised yesteryear the Trade Marks Directive.

46. Furthermore, the ii measures are concerned amongst dissimilar situations. Although both aim to farther the institution as well as performance of the internal market, the Trade Marks Directive does as well as then inward a to a greater extent than express way, yesteryear putting inward house a partial harmonisation of national merchandise grade law. In contrast, the Community Trade Mark Regulation creates a novel type of intellectual holding right, namely a Community merchandise mark".

thinks this is a rattling brave arguing as well as he wonders whether the amount courtroom volition permit it stand. In economical damage as well as inward damage of regulation it seems foreign to destination upwards amongst the decision that, inward a large community that consists of cats, dogs, sheep, goats as well as badgers, a grade that no domestic dog regards equally distinctive can't be registered equally a merchandise grade while, inward a smaller jurisdiction consisting of simply cats as well as dogs, the fact that cats regard the grade equally distinctive but dogs don't produce as well as then volition non touching the mark's mightiness to live on registered.

Other Europolises here , here , here , here and here

Elizabeth Emanuel Ruling; Lidl Opinion

Diana apparel designer loses command of name, fifty-fifty though consumers may locomote deceived

brings yous intelligence of the latest European Court of Justice ruling, Case C‑259/04 Elizabeth Florence Emanuel v Continental Shelf 128 Ltd.

Elizabeth Emanuel, a well-known designer of marriage wear, traded nether her ain hollo from 1990. 1996 she formed a society called Elizabeth Emanuel Plc, to which she assigned her concern of designing in addition to selling clothing, all assets of the concern including its goodwill in addition to an application to register the merchandise grade ELIZABETH EMANUEL, which was granted inwards 1997. In September 1997 EE Plc assigned its business, goodwill in addition to the registered merchandise grade to Elizabeth Emanuel International Ltd, which employed Ms Emanuel for merely 1 month.

In Nov 1997 EE International assigned the registered merchandise grade to some other company, Oakridge Trading Ltd which, inwards March 1998, applied to register the merchandise grade ELIZABETH EMANUEL. In Jan 1999 Ms Emanuel opposed that application was filed and, inwards September of the same year, she sought to revoke the grade that had already been registered. The opposition in addition to the application for revocation were both dismissed on the solid position down that, piece the populace had indeed been deceived in addition to confused, into thinking that Ms Emanuel was connected amongst her eponymous merchandise grade when she was not, such deception in addition to confusion was lawful in addition to the inevitable effect of the sale of a concern in addition to goodwill previously conducted nether the hollo of the master copy owner. Continental Shelf 128 Ltd so became the assignee of the merchandise grade in addition to the belatedly application.

Below: Elizabeth Emanuel's novel label.

On appeal the Appointed Person decided to rest the proceedings in addition to refer the next questions to the Court for a preliminary ruling:

"1. Is a merchandise grade of such a nature every bit to deceive the populace in addition to prohibited from registration nether Article 3(1)(g) [of Directive 89/104] inwards the next circumstances:

(a) the goodwill associated amongst the merchandise grade has been assigned together amongst the concern of making the goods to which the grade relates;

(b) prior to the assignment the merchandise grade indicated to a important proportion of the relevant populace that a detail someone was involved inwards the blueprint or creation of the goods inwards relation to which it was used;

(c) afterward the assignment an application was made past times the assignee to register the merchandise mark; and

(d) at the fourth dimension of the application a important part of the relevant populace wrongly believed that usage of the merchandise grade indicated that the detail someone was nonetheless involved inwards the blueprint or creation of the goods inwards relation to which the grade was used, in addition to this belief was probable to comport upon the purchasing conduct of that business office of the public?

2. If the respond to query 1 is non unreservedly yes, what other matters must locomote taken into consideration inwards assessing whether a merchandise grade is of such a nature every bit to deceive the populace in addition to prohibited from registration nether Article 3(1)(g) [of Directive 89/104] and, inwards particular, is it relevant that the opportunity of deception is probable to diminish over time?

3. Is a registered merchandise grade liable to mislead the populace inwards effect of the usage made of it past times the proprietor or amongst his consent in addition to so liable to revocation nether Article 12(2)(b) [of Directive 89/104] inwards the next circumstances:

(a) the registered merchandise grade in addition to the goodwill associated amongst it take away hold been assigned together amongst the concern of making the goods to which the grade relates;

(b) prior to the assignment the merchandise grade indicated to a important proportion of the relevant populace that a detail someone was involved inwards the blueprint or creation of the goods inwards relation to which it was used;

(c) afterward the assignment an application was made to revoke the registered merchandise mark; and

(d) at the fourth dimension of the application a important part of the relevant populace wrongly believed that usage of the merchandise grade indicated that the detail someone was nonetheless involved amongst the blueprint or creation of the goods inwards relation to which the grade was used, in addition to this belief was probable to comport upon the purchasing conduct of that business office of the public?

4. If the respond to query three is non unreservedly yes, what other matters must locomote taken into consideration inwards assessing whether a registered merchandise grade is liable to mislead the populace inwards effect of the usage made of it past times the proprietor or amongst his consent in addition to so liable to revocation nether Article 12(2)(b) [of Directive 89/104] and, inwards particular, is it relevant that the opportunity of deception is probable to diminish over time?’".

In response to these somewhat lengthy in addition to inelegant questions the ECJ has merely ruled every bit follows:

"1. H5N1 merchandise grade corresponding to the hollo of the designer in addition to kickoff manufacturer of the goods bearing that grade may not, past times argue of that detail characteristic alone, locomote refused registration on the solid position down that it would deceive the public, inside the pregnant of Article 3(1)(g) of Council Directive 89/104 ..., inwards detail where the goodwill associated amongst that merchandise mark, previously registered inwards a unlike graphic form, has been assigned together amongst the concern making the goods to which the grade relates.

2. H5N1 merchandise grade corresponding to the hollo of the designer in addition to kickoff manufacturer of the goods bearing that grade is not, past times argue of that detail characteristic alone, liable to revocation on the solid position down that that grade would mislead the public, inside the pregnant of Article 12(2)(b) of Directive 89/104, inwards detail where the goodwill associated amongst that grade has been assigned together amongst the concern making the goods to which the grade relates".

In other words, a hollo is a commercial property that tin locomote traded inwards similar whatsoever other commodity - so long is the user creates no farther deception (as happened inwards French Republic inwards the recent Inès de la Fressange litigation, to locomote reported inwards full, inwards English, inwards a forthcoming number of the European Trade Mark Reports.

believes this conclusion is both right in addition to uncontroversial. If it were not, celebrities would no uncertainty have a lot less for the right to usage their names, which would doubtless peeve them fifty-fifty more.


A Lidl goes a long way

Yesterday Advocate General Tizzano delivered his persuasion inwards Case C-356/04 Lidl Kingdom of Belgium GmbH & Co. KG v Etablissementen Franz Colruyt NV. Lidl, a High German company, operates a chain of retail stores inwards Belgium. Colruyt, a competing chain amongst to a greater extent than than 170 supermarkets inwards Belgium, sent its customers a leaflet which read:

"Dear customer, Last year, 2003, yous were able in 1 lawsuit once to a greater extent than to construct important savings amongst Colruyt. On the position down of our average toll index for the past times twelvemonth nosotros take away hold calculated that a describe solid unit of measurement spending EUR 100 each calendar week inwards Colruyt stores saved betwixt EUR 366 in addition to EUR 1 129 past times shopping at Colruyt’s rather than at whatsoever other supermarket (such every bit Carrefour, Cora, Delhaize, etc.); in addition to saved betwixt EUR 155 in addition to EUR 293 past times shopping at Colruyt’s instead of a difficult discounter or wholesaler (Aldi, Lidl, Makro). On the contrary side yous volition watch the development of the toll differential vis-à-vis other stores inwards the course of study of 2003. … In society to locomote able to maintain to guarantee the lowest prices, nosotros compare daily eighteen 000 prices inwards other stores. … Each calendar month nosotros usage those prices to calculate the toll differential betwixt Colruyt in addition to the other stores. We refer to this every bit our toll index which is certified past times Quality Control, the independent Instituut voor Kwaliteitscontrole. The result: at Colruyt’s yous enjoy, every solar daytime in addition to at whatsoever fourth dimension of the year, the lowest prices. In 2004 too nosotros remain truthful to this guarantee".

Colruyt too used the next text on its checkout receipts, referring customers to its website for farther explanations inwards regard to the organization of toll comparing which it applied:

"How much did yous salve inwards 2003? If yous spent EUR 100 at Colruyt’s each week, then, according to our toll index, yous volition take away hold saved betwixt EUR 366 in addition to EUR 1 129 inwards comparing amongst some other supermarket (such every bit Carrefour, Cora, Delhaize, etc.); betwixt EUR 155 in addition to EUR 293 inwards comparing amongst a difficult discounter or wholesaler (Aldi, Lidl, Makro)".

Colruyt so launched a pick of basic products nether the hollo BASIC. Some passages inwards its advertising leaflets contained the next statements:

"BASIC: absolutely the lowest prices inwards Belgium. Even cheaper than the comparable pick of the difficult discounters (Aldi, Lidl) …’; ‘BASIC – ABSOLUTELY ROCK-BOTTOM PRICES – In add-on to a important overall toll reduction nosotros tin offering yous from at in 1 lawsuit on a large number of products that yous tin compare amongst those of the typical difficult discounters (like Aldi in addition to Lidl) in addition to amongst the ‘Eerste prijs/Premier prix’ products of other supermarkets. These are our BASIC products: everyday basic products at absolutely rock-bottom prices".

Lidl sued Colruyt for unfair comparative advertising nether Belgian law. The courtroom stayed the proceedings in addition to referred the next questions to the ECJ for a preliminary ruling:

"(1) Must Article 3a(1)(a) of Directive 84/450 ... locomote construed every bit pregnant that the comparing of the full general toll grade of advertisers amongst that of competitors, inwards which an extrapolation is made on the position down of a comparing of the prices of a sample of products is impermissible inasmuch every bit this creates the impression that the advertiser is cheaper over its entire hit of products, whereas the comparing made relates only to a limited sample of products, unless the promotion makes it possible to constitute which in addition to how many products of the advertiser, on the 1 hand, in addition to of the competitors used inwards the comparison, on the other, take away hold been compared, in addition to makes it possible to ascertain where each challenger concerned past times the comparing is positioned inwards the comparing in addition to what its prices mightiness locomote inwards comparing amongst those of the advertiser in addition to of the other competitors used inwards the comparison?

(2) Must Article 3a(1)(b) of Directive 84/450 ... locomote construed every bit pregnant that comparative advertising is allowed only if the comparing relates to private goods or services that run into the same needs or are intended for the same purpose, amongst the exclusion of production selections, fifty-fifty if those selections, on the whole in addition to non necessarily inwards regard to every sub-division, run into the same needs or are intended for the same purpose?

(3) Must Article 3a(1)(c) of Directive 84/450 ... locomote construed every bit pregnant that comparative advertising inwards which a comparing of the prices of products, or of the full general toll level, of competitors is made volition locomote objective only if it lists the products inwards the comparing that are beingness compared in addition to makes it possible to ascertain the prices beingness charged past times the advertiser in addition to its competitors, inwards which example all products used inwards the comparing must locomote expressly indicated for each private supplier?

(4) Must Article 3a(1)(c) of Directive 84/450 ... locomote construed every bit pregnant that a characteristic inwards comparative advertising volition satisfy the requirement of verifiability inwards that article only if that characteristic tin locomote verified every bit to its accuracy past times those to whom the advertising is addressed, or is it sufficient if the characteristic tin locomote verified past times 3rd parties to whom the advertising is non addressed?

(5) Must Article 3a(1)(c) of Directive 84/450 ... locomote construed every bit pregnant that the toll of products in addition to the full general toll grade of competitors are inwards themselves verifiable features?".

AG Tizzano proposes the next answer:

"(1) The status amongst regard to permissibility referred to inwards Article 3a(1)(b) of Directive 84/450 does non forbid advertising which makes a comparing betwixt selections of goods or services.

(2) The requirements inwards honor of the ‘objectivity’ in addition to ‘verifiability’ of the comparison, position downwardly inwards Article 3a(1)(c) of the Directive, exercise non forbid advertisements which exercise non expressly advert the goods in addition to prices that are beingness compared when the advertisements inwards query betoken where in addition to how an average consumer tin notice those elements easily or inwards whatsoever example clearly arrive possible for the consumer to ascertain what they are from the context in addition to the circumstances of the case.

(3) Comparative advertising which compares the toll levels inwards diverse supermarkets on the position down of an extrapolation from selected information in addition to which gives ascent to the belief that the toll differences cited apply to all the products sold past times those supermarkets is misleading inside the pregnant of Article 3a(1)(a) of the Directive".

In other words, advertisers are advised to say which brands or goods the comparing is based on. likes this approach, since it encourages comparative advertisers to maintain consumers ameliorate informed - in addition to so ameliorate empowered. On the supposition that fourth dimension is money, Merpel adds, it would locomote prissy if they added how long yous tin aspect to describe upward waiting to pay for what yous buy, every bit good every bit how much fourth dimension to take away hold to ferret some looking for the cheaper products that the comparing is based on.

Lidl online here; Colruyt here
Somewhere a fleck classier, but to a greater extent than expensive, here

Singapore Treaty; Tidings From Turkmenistan

Singapore TLT (as it instantly seems to endure known)

OHIM's Jessica Lewis has drawn the IPKat's attending to a really useful WIPO spider web page here that features novel WIPO documents. It contains confirmation that the Singapore revision of the Trademark Law Treaty has been adopted past times the conference past times a charge of countries listed here. It also has a draft text here and lots to a greater extent than besides. Many thanks, Jessica!


IP's all happening inward Turkmenistan

7 June 2006 is a ruby missive of the alphabet hateful solar daytime for IP inward Turkmenistan. On that engagement the Caucasian quondam USSR commonwealth steps upward its commitment to the international community past times implementing the Vienna Agreement Establishing an International Classification of the Figurative Elements of Marks, the Nice Agreement Concerning the International Classification of Goods as well as Services for the Purposes of the Registration of Marks as well as the Locarno Agreement Establishing an International Classification for Industrial Designs.

But ... it won't endure till seven March 2007 that Turkmenistan implements the Strasbourg Agreement Concerning the International Patent Classification.

Lots close Turkmenistan here
How to brand traditional Plov here
What to create inward Turkmenistan here
Turkmenistan as well as human rights here

Software Copyright; Ip Event; Ipkat Mailings

SA Supreme Court software copyright case

The South African Supreme Court (SCA) has decided a illustration on copyright inward reckoner programs, IOL reports. Anton Haput developed the Data Explorer software as well as claimed that his copyright inward this was infringed past times the All Media Products Survey software. The SCA held that the author of AMPS had copied a substantial piece of work of the Data Explorer source code because he constitute it equally good hard to write himself. The courtroom held that substantiality is a qualitative, rather than quantitative enquiry as well as that the AMPS author had taken a peculiarly valuable piece of work of the Data Explorer source code.

A quick glance at the judgment shows that the courtroom also deals alongside originality, authorship as well as reckoner generated works.

says this essay out of substantiality sounds jolly sensible, although qualitative taking is to a greater extent than hard to assess objectively than quantitative taking. Readers should greenback that this appears to endure a direct source code copying case, rather than a ‘look as well as feel’ case.

Full text available here


Word IP Day event

has been informed near the next resultant run past times Own It, together alongside Briffa:

It’s World Intellectual Property Day and, to grade this auspicious event, Own It direct maintain teamed upwardly alongside Briffa Law Firm to larn a global thought on the ins as well as outs of trading internationally as well as how to protect as well as exploit your piece of work across a huge geographical as well as concern landscape. Aspects of intellectual belongings that volition endure discussed at this resultant include export, manufacturing as well as licensing, protecting your work, getting the best bargain as well as what to create if your piece of work is copied as well as is beingness manufactured as well as sold abroad. This resultant volition direct maintain a special emphasis on manufacturing inward PRC as well as the novel markets as well as opportunities opening upwardly inward the Far East. There volition endure enough of opportunities to enquire questions. Event: It's a mad mad footing - protecting as well as making coin from your IP inward an international marketDate: Midweek 26 Apr 2006Time: 6.00 to 8.00 pmLocation: West Space, Rootstein Hopkins Space, London College of Fashion, John Princes Street, London W1

Book your house here
More data here
Location map here


IPKat mailing list

New readers mightiness similar to know that they tin bring together the IPKat’s mailing listing as well as have the IPKat’s posts past times electronic mail each fourth dimension they’re posted. Just drib the IPKat a job at theipkat@yahoo.co.uk as well as he’ll sign y'all up.

Apple 5 Apple

Today Isle of Mann J is hearing Apple Corp v Apple Computers (the courtroom listing tin live on viewed here). The dispute arises out of a pre-internet-age short town agreement, inwards which Apple Computers paid Apple Corp, the Beatles' tape label, to live on able to role the APPLE grade for computers too associated goods, exactly non for music. At the fourth dimension (1991), the widespread role of computers for playing music, permit solitary the iPod, hadn't been envisaged.

doubts whether there'd live on confusion betwixt the ii parties' role of APPLE, peculiarly since the Beatles' music isn't made available for download, exactly that's non actually the indicate here. By making a co-existence understanding the parties lifted this affair out of merchandise grade constabulary too into the realm of contract.

Back From Singapore ... In Addition To Off To Singapore Again

Back from Singapore ...

's non bad friend Tibor Gold (Kilburn & Strode) has returned from Singapore, where he took some fourth dimension off from his customer operate too translating Court of First Instance decisions into English, inward fellowship to solve the world's problems. So what, inward answer to the IPKat's queries, is the Singapore Treaty about? Tibor writes:

"I tin tell that it's a Treaty that replaces the 1994 one, modernizes it due to eg electronic communications, to a greater extent than multi-class countries, to a greater extent than odd marks etc; withal it has no noun law, it's but procedural most the MAXIMUM whatever Patent Office may postulate from applicants too right-holders when applying for registration, renewing, recording licences too assignments, changes of register details generally; summation the information that may live on demanded from representatives.

presents pictures of Tibor earlier (left) too afterwards (right) his 3 weeks inward the hot too sweaty tropics.

It turned into a rattling political negotiation alongside LDCs demanding technical assistance too assistance to prepare their laws, rules, staff too technology....".

cheers Tibor for taking the problem to allow him know what's happening.


... too off to Singapore again!

The IP Academy Singapore hosts its initiative Global Forum on Intellectual Property 2006 on 21 too 22 August 2006. There's a marvellous all-star sort of speakers too. According to the Forum's website:

"The IP Academy is pleased to acquaint its initiative Global Forum on Intellectual Property 2006 (GFIP 2006) on 21 too 22 August 2006 at the Raffles City Convention Centre, Singapore.

GFIP 2006, i of the largest too the but multi-disciplinary IP forum inward Asia Pacific to-date, volition convey together some of the world’s most influential IP figures to explore too hash out novel IP trends too to harness trace of piece of occupation organisation opportunities inward a setting conducive to creative thinking.

The topic of GFIP 2006 is "Tilting the Global Balance inward the IPR landscape : The Strategic Implications of the increment inward the Asia Pacific region". Influenza A virus subtype H5N1 distinguished line-up of international speakers too panelists volition visit too address how Asia Pacific’s growing economical influence, led yesteryear China, Republic of Republic of India too the Middle East, volition exert an increasing influence on global IP creation, protection, exploitation too management.

GFIP is expected to depict most 400 delegates from diverse IP related fields around the world".

Details are available here.

Recently Published - For You

IP&T

The March 2006 number of Butterworths' Intellectual Property & Technology Cases, which supports its online IP&T service, contains 5 cases: the Court of Appeal for England in addition to Wales decisions inwards BHB v William Hill (on how useless the sui generis database correct actually is), Ultraframe v Eurocell (on patent in addition to blueprint infringement - this must last almost the 100th fourth dimension these 2 convey met inwards court, moans the IPKat) in addition to Oakley v Animal (on how U.K. IP implementation of European Union harmonisation directives is totally valid in addition to boringly uncontroversial again, despite the unexpected courtroom appearance of King Henry VIII (right) at starting fourth dimension instance).

Concluding the number are Soffass v OHIM (the Nicky/Noky Community merchandise grade illustration earlier the Court of First Instance) in addition to the highly publicised defeat of the Picasso estate past times OHIM in the PICASSO/PICARO battle earlier the European Court of Justice).


BioSLR

Nurtured past times the rich soil of rural Oxfordshire, Lawtext's occasional Bio-Science Law Review has straightaway produced its 5th number for the fondly-remembered yr 2004-2005. As usual, it's worth waiting for if y'all similar a skilful bio-legal read.

Right: the dangers of addictive varieties of catnip larn wider than only issues of articulation ownership

This number contains Margaret Llewelyn's musings on the novel compulsory exploitation right, introduced past times Article 29 of the Community Regulation on Plant Variety Rights (the IPKat missed this when it starting fourth dimension occurred ...), also equally a brilliant slice from Vicky Clark (VC Legal - the Kat thinks she's a sole practitioner) on shared ownership of query results - this is almost the worst thing the IPKat tin imagine, in addition to thence he's glad that Vicky sounds a alert almost the dangers that articulation ownership tin generate.


Patent World

The Apr 2006 number of Informa's popular Patent World has a first-off-the grade slice past times Taylor Wessing's Gary Moss in addition to Benjamin Grzimek on some procedural aspects of the BlackBerry patent litigation inwards Deutschland in addition to the UK.

Left: nanotechnology seeks to shrink the microcat yet further

There's a highly topical article past times Freshfields Bruckhaus Deringer's Peter Hendrick in addition to B. J. Berghuis van Woortman on the electrical current seat regarding detention of infringing goods equally they larn into the European Union - a dependent champaign that many people assume concerns merchandise marks in addition to copyrights rather than patent rights. Also worthy of Federal Reserve annotation is the issue's particular focus on patents inwards nanotechnology which, inwards keeping amongst its dependent champaign matter, is really small-scale ...

Stop Press: Singapore Treaty Done In Addition To Dusted

has heard from the World Intellectual Property Organization (WIPO) that the Singapore Treaty on the Law of Trademarks has only been adopted, today. The WIPO press controversy reads, inwards relevant part, equally follows:

TREATY TO FACILITATE INTERNATIONAL TRADEMARK REGISTRATION

A novel international treaty on trademarks, to hold upward known equally the Singapore Treaty on the Law of Trademarks ... was adopted on March 28, 2006 past times fellow member states of ... WIPO. The novel treaty concludes efforts past times WIPO’s fellow member states to update the 1994 Trademark Law Treaty (TLT) together with convey it inwards describe amongst the technological developments of the past times decade.

[Message of cheers etc from Dr Idris (left), followed past times lots of tedious padding that volition presumably hold upward of bang-up involvement to non-IP readers]

The Singapore Treaty deals mainly amongst procedural aspects of trademark registration together with licensing. By agreeing to mutual standards inwards that area, fellow member stares [the IPKat thinks this should hold upward "states" exercise a grade playing plain for all economical operators that invest inwards branded goods. More than that, the Singapore Treaty creates a dynamic regulatory framework for build rights. Due to the creation of an Assembly of the contracting parties, the Treaty has a built-in review machinery for administrative details of a less order, although of bang-up practical importance for build owners.

The Treaty recognizes developments inwards the branded goods manufacture together with marks a novel approach to securing investment inwards production differentiation. Brands are no longer confined to stickers or labels on goods; today, the build stands for the product’s identity. Creativity together with investment goes into the evolution of brands, together with it is vital for the manufacture to hold upward able to secure that investment. New rules applicable to all types of trademarks, equally contained inwards the Singapore Treaty, address those needs. The Singapore Treaty takes into job organisation human relationship the advantages together with potential of electronic communication facilities, spell recognizing the varying needs of both developing together with developed nations. During negotiations or thence developing together with to the lowest degree developed states expressed concern nigh their powerfulness to fully exercise goodness from the Treaty. These discussions resulted inwards a theater commitment past times industrialized countries to render adequate technical assistance together with other forms of back upward to strengthen the institutional capacity of those countries to enable them to cause got total wages of the Treaty".

is pleased that thence many diplomats together with regime officials cause got been made thence happy - together with that this happiness has resulted inwards the creation of withal or thence other Assembly. Merpel says, I've only conducted a search of the WIPO website for "Singapore Treaty" together with received the next response:

"No results were establish for your search.

Your inquiry is also restrictive.
You powerfulness desire to try: singapore treaty".

Can somebody delight throw us a link to the Treaty text thence nosotros tin flame give it a read?

Computer Conferences; Bluish Peter Badges

Computers & police describe – telephone telephone for papers

The VIth World Computer Law Conference is taking identify at the University of Edinburgh betwixt 4-8 September 2006.

Contributions are sought inward all legal aspects of the data society, merely papers on IP aspects are especially welcome.

If you lot desire to direct maintain purpose though, you’d amend teach your skate on – abstracts of no to a greater extent than than 600 words are due inward THIS FRIDAY (31 March).

Full details, including where to submit your papers, are available here.


Peter Panned

The BBC is attempting to scrap the sale of Blue Peter badges on eBay. The badges, featuring the Blue Peter ship’s logo, are given to children who contribute to the Blue Peter boob tube programme in addition to enable them to gain gratis access to all sorts of dainty touristy places. Blue Peter editor Richard Mason said:

"We know how hard children move to earn a badge, in addition to nosotros are doing our best to ensure that this long-standing Blue Peter establishment is non undermined."

can’t quite move out what the BBC’s objection is here. From Mason’s comments, it looks similar he’s afraid of the diminution inward the exclusivity of the badge, in addition to thence is mounting around form of quasi-dilution argument. If the badges are fakes thence he tin sympathise the BBC’s position. More hard issues arise if the badges inward query are genuine Blue Peter badges. reckons that at that spot would survive no exhaustion of rights defense forcefulness hither because the badges direct maintain been given away, rather than lay on the marketplace orbit inward the EEA, merely it seems pretty petroleum if recipients can’t dispose of something that they direct maintain been given.

Sound Recordings - Due For Longer Copyright? As Well As Where Precisely Is Melton Mowbray?

musings on Northern Foods Ltd v DEFRA (the Melton Mowbray Pork Pie case, judgment on BAILII here). That conclusion has resulted inwards the reference of a single, remarkably fact-specific, interrogation for a preliminary ruling past times the European Court of Justice:

Right: Melton Mowbray pieman inwards search of the perfect pig ...
Left: this petty piggie finds a cool means of escaping the Melton Mowbray pie-makers.

thank y'all Michael Edenborough for his kindness inwards letting him convey sight of the Order for the reference. Merpel says, this should convey the ECJ judges scuttling off to larn their gazetteers too route maps.

Adam Opel: Merchandise Rank Role Lives To Struggle Approximately Other Hateful Solar Daytime (Sort Of)

is grateful to Simon Malynicz, who has provided him amongst a re-create of Eversheds’ rather marvellous English linguistic communication translation of Advocate General Ruiz-Jarabo Colomer’s Opinion inward Adam Opel. apologises for the length of this post, but he though it was justified, considering the importance of the case.

Opel manufactures cars together with has used OPEL BLITZ every bit a merchandise grade for its cars for many years. In 1990 it successfully registered OPEL BLITZ every bit a High German figurative grade for diverse products, including toys. The grade was used for model cars which were manufactured nether licence together with distributed through Opel’s parts distribution network. Autec produced remote-controlled toy scale model cars which it sold nether the grade CARTRONIC. These model cars were replicas of the Opel Astra V8 Coupe together with bore the protected grade on their radiator grills inward the same house every bit the full-sized motorcar did. However, the CARTRONIC together with AUTEC marks appeared on instructions for use, packaging together with remote controls. Opel argued that the job of the marks on the remote-controlled cars was the job of identical marks on identical goods together with thereby constituted infringement nether Art.5(1)(a) of Directive 89/104. This declaration was countered past times Autec. The Landgericht Nurnberg-Furth referred questions to the ECJ cry for whether the job of a merchandise grade on model cars would infringe that merchandise grade together with if it did, whether a defense forcefulness would move available.

The Advocate General advised the ECJ to dominion every bit follows:

* The interpretation of Art.5(1)(a) arises out of the BMW case. There the ECJ stated that the application of the article depends on whether the job of the grade is to distinguish goods, i.e. whether it is used every bit a merchandise grade or for other purposes. These alternatives formed the footing of the analysis of the ECJ’s illustration constabulary on the matter.

* The consequence of the Arsenal illustration is that the merchandise grade possessor is given ‘absolute’ protection, inward the feel that he is granted protection independently of the run a peril of confusion since confusion is presumed. However, this does non meant that the merchandise grade possessor gets consummate protection against all parties inward all circumstances. Generally, the ECJ has taken a teleological approach to construing Art.5(1)(a), stating that it protects the specific interests of the merchandise grade owner, thus that the grade may fulfil the functions which are proper to it, i.e. of guaranteeing to consumers the rootage of the product.

* In this case, the OPEL emblem figured on the trunk of the scale models amongst a resemblance that enabled recognition, inward principle, of the identity of the products inward enquiry for the purposes of Art.5(1)(a), but this was a affair for the national gauge to evaluate.

* Arsenal also set downward the limits beyond which the merchandise grade possessor cannot exercise his powers nether Art.5(1), namely, he cannot halt an identical sign from beingness used if the afterward job cannot harm the rights of the registered owner. This agency that around afterward sues for purely descriptive purposes are excluded from the orbit of the provision.

* The Budweiser illustration described how i tin ascertain whether harm has been done to the before mark, proverb that harm has occurred where the afterward job accredits a cloth link inward the course of written report of merchandise betwixt the products of the afterward user together with those of the merchandise grade owner. It should move determined whether the relevant consumers perceive the afterward user’s sign every bit designating the merchandise grade owner. This is a affair for the national courtroom to determine.

* The job of a sign inward accordance amongst the rules described inward BMW is the exclusively job non to autumn inside the orbit of Art.5(1)(a). The defences inward Art.6 come upwards into play where the registered sign does exercise the role of a merchandise grade but, for world involvement reasons, afterward users are entitled to turn a profit from the payoff of their use. This lies inward contrast to job for a purely descriptive purpose that does non harm the role of a merchandise grade together with thus which is non counted every bit infringement nether Art.5(1). Use which does non harm the role of a merchandise grade is an opened upwards category which must move completed on a case-by-case basis. Unlike the Art.6 defences, these non-damaging used are non derogations from protection together with thus attain non require a restrictive interpretation.

* In this case, the job of the OPEL BLITZ merchandise grade constituted job which differed from the proper role of a brand. It is exclusively lately that motorcar manufacturers conduct keep realised the economical potential of scale models realisable through merchandising, important that it was hard to imagine that Blue Planet would automatically associate the emblem amongst the cars of the manufacturer of the full-sized cars. Moreover, in that location was a run a peril that also strict a persuasion of infringement would give motorcar manufacturers a monopoly inward the miniatures market. Also, on the facts referred past times the national court, consumers did non build the requisite cloth link inward the course of written report of merchandise betwixt the afterward user’s products together with those of the registered proprietor. While consumers established a link betwixt the miniature together with Opel’s existent car, they did non institute a link betwixt the afterward goods together with the model cars manufactured for Opel past times its licensees, which would move necessary nether Art.5(1)(a). Furthermore, the miniature cars together with the existent cars could non move classed every bit identical goods.

* Since the mo together with 3rd questions were posed exclusively if the response to the start enquiry was positive, it was non strictly necessary to response them. However, the Advocate General made a seat out of comments.

* Since the Art.6 defences are a derogation from Art.5, they had to move interpreted strictly. Here it was hard to fence that the reproduction of Opel’s merchandise grade on the miniature cars could move considered to move an indication of the type of classification. However, the job of the emblem was inside the orbit of other characteristics every bit referred to inward Art.6.

* The recent illustration constabulary of the ECJ gave clear guidelines every bit to the nature of honest practices inward industrial together with commercial matters, which the Advocate General summarised briefly. Miniatures toys could non move considered to move imitations or replicas of the merchandise marked gods (Gillette mentions whether the defendant’s goods copy the claimant’s goods every bit a component relevant to honesty) since the toys imitated the cars themselves, rather than the models of the cars. In Budweiser, the ECJ had said that honest practices should move assessed past times taking into concern human relationship whether the commercial cry of the accused would move understood past times the target world every bit indicating a link betwixt the defendant’s products together with holder of the merchandise grade together with also, whether the accused should conduct keep been aware of this. The renown of the before grade inward the Member State where it was registered was also relevant. The job past times Autec of its ain AUTEC together with CARTRONIC merchandise marks meant that Autec’s deportment was honest inward total compliance amongst commercial practice. There was no abuse of the OPEL merchandise mark, which was precisely where nay consumer would await to discovery it, on the radiator grill.

In regulation the IPKat welcomes the Advocate General’s sweat to clarify how BMW, Arsenal and Budweiser can co-exist (though he notices that Robelco is non mentioned) but inward exercise his solution is messy. He tries to residue merchandise grade job linguistic communication amongst the Arsenal approach of the demand to harm the way inward which the merchandise grade functions, fifty-fifty though they don’t tally together easily. His sweat to define which uses don’t harm the role of a merchandise grade is to move welcomed, together with is wider than the Court of Appeal inward Arsenal’s holding that whatever job which isn’t descriptive volition crusade such harm.

However, his job of a cloth link every bit the seek out for such harm is hard to understand. We can’t move talking most a false belief most confusion because he himself says confusion is non required. What are nosotros talking most then?

wonders what the fate of BMW would conduct keep been nether this test. The illustration in that location was run rather differently. Here the enquiry is would consumers conduct keep linked the model Opel cars made past times Autec amongst the model cars made nether licence of the merchandise grade owner. In BMW, the declaration was whether the job of the term BMW inward Deenik’s declaration that he serviced BMW cars counted every bit job of the BMW sign to refer to the cars that were the subject-matter of the servicing. In this case, the equivalent declaration would move that the job past times Autec of the Opel grade referred to Opel’s full-sized cars every bit the subjects of the depiction past times the models, rather than to the models made past times Opel.

Viewing the Art.6 defences every bit a derogation is problematic. Trade grade rights are themselves a derogation from the gratis displace of goods, together with inward the past times the ECJ has been willing to recognise the defences every bit the meeting-point betwixt gratis displace together with mortal intellectual belongings rights together with thus every bit a to a greater extent than frequently than non proficient thing. The logic of the Advocate General’s determination is that the defences are a derogation from a derogation (that of merchandise grade protection from gratis displace of goods). This would move out the honest practices proviso every bit a derogation from a derogation from a derogation. can’t start out to imagine what this must attain to the width amongst which the honest practices proviso must move construed.

is also refraining from making whatever comments most the AG’s foray into the nostalgic qualities of model vehicles. He won’t say anything most the AG having said that such toys appeal to those ‘requiring to a greater extent than imaginative contact amongst their postulates’. Filthy-minded Merpel nonetheless can’t resist a small-scale snigger.

Sunglasses As Well As Citrus

Shady shades

was doing a trawl of the ECJ website (he has to amuse himself somehow) when he came across an Order inward Case C-267/05 removing Oakley v Animal from the ECJ’s register next the withdrawal of the preliminary reference past times the Patents Court. Oakley v Animal is the blueprint illustration inward which Peter Prescott QC’s determination that the United Kingdom of Great Britain in addition to Northern Ireland of Britain in addition to Northern Republic of Ireland blueprint constabulary was implemented ultra vires was overturned past times the Court of Appeal.

Perhaps the IPKat is terribly backward, only he had no persuasion that this had happened. Can whatever of his readers shed whatever lite on the champaign of report (on or off the tape – only delight dry soil if you lot desire to teach anonymous.

Oranges are the solely fruit

Do whatever of the IPKat’s readers know what has happened to the Organon’s appeal against the USPTO’s refusal to register an olfactory score for the sense of savor of orange? The TTAB was meant to dominion on the illustration on seven Dec 2005 only neither the IPKat nor QMIPRI’s trusty librarian tin detect whatever line of it. If the score is registered it volition live on the US’s outset sense of savor mark.

No To A Greater Extent Than On Conor; Temples Of Meat

here, here, here and here). This time, it's the plough of Luke Dylan Ueda-Sarson to respond to Brian Whtehead. For ease of reference, Brian's comments are inwards red, Luke's inwards blue. Says Luke:

"Thanks for the latest installment inwards what seems to becoming the Conor Medsystems saga... I am quite enjoying this, since it is making me intend difficult most or so commutation points of patent law.

For what it's worth, I concur alongside Merpel's comments, inwards which instance the gauge is perchance just guilty of somewhat sloppy phraseology. It is certainly a to a greater extent than encouraging notion that the other possible reason!

However, I am puzzled past times or so of Brian Whitehead's comments, specifically past times his usage of the discussion "claimed" - although it seems to me he is using it the same means every bit the judge, so is inwards proficient company!

As I empathize it, Pumfrey said that when considering the inquiry of obviousness, 1 must kickoff ascertain the compass of the innovation claimed.

I stance 1 ascertained the compass of the innovation *claimed* past times reading the *claims* as well as ascertaining their compass - otherwise 1 is ascertaining the compass of the disclosure every bit a whole, which is certainly or so other thing entirely. If the 2 do non coincide, as well as so that is a affair of department 72.1 c, ie. enablement as well as sufficiency of description, etc. Why it should figure into inventive stride is less clear to me.

At the cease of para 24, he concludes that in that place is no illustration given inwards the patent of the purpose of taxol-coated stents for the inhibition of restenosis at angioplasty sites. This leads him to conclude, at para 62, that the disclosure of the specification is just that taxol may live incorporated into a stent, as well as non that such a stent would genuinely work.

Which would seem to live a affair for striking the relevant claims (which may or may non equate to "the patent") downwards for lack of enablement, if inwards fact the skilled soul inwards the fine art had no footing for in conclusion it would.

The patent thence does non claim, every bit such, a stent containing taxol for purpose inwards controlling restenosis. At best, it claims the stance of trying taxol inwards a stent.

Hmmm. I would hollo you lot to claim 12. Here are the claims from the judgment:

"1. H5N1 stent for expanding the lumen of a trunk passageway, comprising a mostly tubular construction coated alongside a composition comprising an anti-angiogenic ingredient as well as a polymeric carrier, the ingredient existence anti-angiogenic past times the CAM assay, as well as wherein said anti-angiogenic ingredient is taxol, or an analogue or derivative thereof.

6. H5N1 stent according to whatever 1 of claims 1 to five wherein said stent is a vascular stent.

[11. H5N1 stent according to whatever 1 of claims 1 to five for treating narrowing of a trunk passageway.]

12. H5N1 stent according to claim xi for treating or preventing recurrent stenosis."

It seems to me that that is precisely what the patent is claiming!

Therefore, if it would convey been obvious to the skilled homo to endeavor taxol, the patent is invalid for lack of inventive step. The probable prospect of success is irrelevant, every bit the patent does non claim that such a device would inwards fact live successful.

The patent may non divulge plenty testify to convince the hypothetical skilled worker of the fourth dimension that such a device would live successful, but it most certainly does claim exactly that, correct in that place inwards claim 12.

If the patent is at mistake for claiming this, as well as so certainly this is a affair for sction 72.1 c, as well as non department a?

I feel or so confusion hither betwixt what the patent claims - inwards the claims - as well as what the patent genuinely describes, exterior the claims (which could live talked most every bit "claims" - but non inwards the patent police sense).

I was ever given to empathize that inventive stride should live looked at on a claim past times claim basis; if that is so, hollo for whether "the invention", singular, is obvious, is a non sequiter. It is truthful that the 1977 deed refers to innovation singular when referring to inventive step, but the PCT is real careful to utter most the "claimed invention" inwards this regard, as well as I do non believe the U.K. exercise is to distinguish the two. Have I been mislead? If the U.K. (and EPO) regard "an invention" differently from state the JPO (which fifty-fifty inwards literature for the full general populace equates claims alongside inventions, this the enormous numbers of "inventions" patented every yr -since each patent volition contain many such "inventions"), as well as to a greater extent than importantly, WIPO, this has serious repercussions for inetrnational applications.

The gauge constantly talks most "the invention" existence obvious, but it seems to me this is because he is providing his ain Definition of what the innovation is - as well as it is non what is genuinely existence claimed...

For the record, this is the kickoff fourth dimension anyone has confessed to agreeing alongside Merpel, who is purring alongside delight. says, it's ever impressive to run across how carefully people read as well as analyse the words alongside which judges select to limited their reasoning.


Temples of meat

has learned from De Morgen, via Ananova, of the Temples of Meat exhibition, which volition only live on display for 3 days - until it goes off. The work, past times creative soul Jan Fabre, is existence shown at the Museum of Modern Art inwards Ghent; it includes a coat made of steaks as well as a tent of bacon alongside sleeping bags of steak.

Left: Fabre is non the only inwardness creative soul to convey caught Ananova's attention. This is Gabriela Rivera, who is pictured hither wrapped inwards meat.

Fabre says:

"Meat is a real erotic material. H5N1 lot of my run is most the cult of decay as well as death. I besides honey to do something that volition live destroyed afterwards 3 days. It's a lesson inwards modesty for every creative soul who confesses his honey for eternity."

Fabre said he worked through the nighttime alongside his assistants to plough 100kg of steak, 15kg of minced inwardness as well as a few kilometers of Parma bacon into art.

used to believe that, when it came to art, de gustibus non disputandum ("there's no accounting for taste"). Looks similar there's no accounting for aroma either. There seems no incertitude that the fact that a run is executed inwards inwardness does non disqualify it from whatever copyright protection every bit an artistic run that it mightiness otherwise enjoy. Merpel adds, the motion from porn to inwardness mightiness live characterised every bit a shift from cleavage to cleaver ...

Art past times Bacon here
Decayed corpse chips alongside entrail salsa here
Phobia fine art here
Treatment for inwardness phobia here

More On Conor

blog on Conor Medsystems on vi March (also commented on here) together with the comments from Luke Dylan Ueda-Sarson most Pumfrey J's judgment (which tin live read here in total on BAILII).

Luke wonders whether Pumfrey used the incorrect examine for obviousness. I mean value that he may stimulate got misunderstood what Pumfrey was saying. As I empathize it, Pumfrey said that when considering the inquiry of obviousness, i must outset ascertain the compass of the conception claimed. Pumfrey, before inwards the judgment, looks at the specification of the patent inwards exactly about detail. In para 12, he says that the patent is "lengthy", but "very niggling of it is most restenosis together with stents". At the terminate of para 24, he concludes that at that topographic point is no illustration given inwards the patent of the role of taxol-coated stents for the inhibition of restenosis at angioplasty sites. This leads him to conclude, at para 62, that the disclosure of the specification is exactly that taxol may live incorporated into a stent, together with non that such a stent would genuinely work. The patent hence does non claim, every bit such, a stent containing taxol for role inwards controlling restenosis. At best, it claims the sentiment of trying taxol inwards a stent. Therefore, if it would stimulate got been obvious to the skilled homo to movement taxol, the patent is invalid for lack of inventive step. The probable prospect of success is irrelevant, every bit the patent does non claim that such a device would inwards fact live successful.

Accordingly, I produce non mean value that Pumfrey did role the incorrect test. I also produce non mean value that the judgment adds anything to the ongoing "obvious to try" saga inwards Schering-Plough together with Saint Gobain etc, every bit the prospects of success are not, on the special facts of the case, relevant.

Of course, it may live me who has misunderstood the judgment, but that is my 2 pence worth!

is feeling decidedly puzzled at this point: each declaration he has read seems perfectly plausible to him together with they can't both live right. If whatever of the judges who read this weblog would similar to brand a ruling, the Kat would live most grateful. Merpel says, on balance, Brian Whitehead must live right. If nosotros assume that Pumfrey J (i) knew the existing police together with (ii) would non stimulate got sought to alter it or apply it inwards an innovative vogue without outset flagging his intention to produce so, nosotros should examine the judgment on the footing that - if at that topographic point is whatever discernible shift inwards the law's application - to the lowest degree departs from normal accepted practice.

Abstract of recent article on patent claim interpretation past times Brian Whitehead together with Richard Kempner here.

It's Liffe, Precisely Non Every Minute Nosotros Know It; On Yer Bike

It's Liffe, exactly non every bit nosotros know it

has retrieved this precious rock from BAILII: it's Liffe Administration too Management v Pinkava too another [2006] EWHC 595 (Pat), a rare conclusion of the Patents Court (Mr Justice Kitchin) final Fri on employees' inventions.

Pinkava, an employee of Liffe, the fellowship that operated the London futures exchange, devised a organisation that permitted trading to accept identify through an electronic telephone substitution of diverse types of fiscal instruments (credit default swaps, credit index swaps, involvement charge per unit of measurement swaps too overnight index swaps). Maintaining that he owned the inventions, Pinkava filed patent applications inwards the United States, where trace of piece of work organisation methods are patentable, too afterwards assigned them to his ain company, De Novo.

Liffe sued Pinkava for misuse of confidential data too breach of contract, too seeking a proclamation that it owned the US patent applications. Pinkava so commenced proceedings inwards the Great Britain Patent Office for a proclamation that he owned the inventions: these proceedings were so transferred to the High Court. Liffe denied that the inventions belonged to Pinkava, contestation that the inventions were made inwards the course of report of the Pinkava's duties too so belonged to it nether s.39(1) of the Patents Act 1977 (which provides that inventions made yesteryear employees inwards the course of report of occupation duties, from which patents tin sack reasonable last expected to result, belong to the employers).

Kitchin J allowed Liffe's claim. When applying the department 39 test, it was necessary to direct maintain regard to the normal duties of the employee too whatever duties peculiarly assigned to him exterior his normal duties. It was so necessary to enquire whether the inventions inwards number were made inwards the course of report of those duties and, if so, whether the an project design mightiness reasonably last expected to direct maintain resulted from the employee carrying out those duties.

On the facts of this case, Pinkava's inventions were non made inwards the course of report of his normal duties exactly were made inwards the surgical operation of a duty that had been peculiarly assigned to him: the duty to practise an telephone substitution tradable credit derivative. Also, nether the circumstances an project design mightiness reasonably direct maintain been expected to number from the carrying out of those duties.

notes how broadly applicable are the provisions that protect employers' rights inwards inventions made yesteryear their employees. Merpel reminds readers that the Great Britain law, which was amended inwards 2004 to larn far easier for employee inventors to secure a portion of the practise goodness derived from an project design yesteryear their employers, all the same provides hard obstacles to last overcome earlier a successful claim tin sack last met.

More on Liffe here, too on Liffey here

Parallel traders, on yer bike ...

Here's a cute piddling merchandise grade conclusion from Mr Justice Lewison, Honda Motor Co Ltd too others v Neesam & others, decided inwards the Chancery Division this Fri too non yet available on BAILII - exactly neatly potted yesteryear Butterworths LexisNexis' All England Direct subscription service.

Neesam were the parallel importers into the EEA of motorbikes made by, too bearing the merchandise grade of Honda. These proceedings concerned for sure motorbikes imported from Australia, the US too Hong Kong, which authorised motorcycle dealers from those countries were non allowed to sell exterior their recognised territory.

Honda sued for merchandise grade infringement, seeking summary judgment. Neesam resisted, contestation that the consent of Honda's subsidiaries inwards supplying the bikes had been plenty to bind Honda itself, or at to the lowest degree that consent to their importation too resale could last inferred.

Lewison J gave summary judgment inwards part, in that place beingness no reasonable prospect that Neesam's defense forcefulness could succeed inwards relation to bikes imported from the US too Hong Kong. is looking forwards to getting concord of the transcript of this judgment so that he tin sack run into why Commonwealth of Australia is different.