Dogs Together With Other Fluff

Crazy merchandise grade cases from the the U.S. of A.

* The Miami Herald reports that the possessor of Neiman Barkus, The House of Doggy Style, a pampered pooch store, is beingness sued for dilution past times retailer Neiman Markus. It is every moment good claimed that his neimanbarkuspet.net domain lift is an instance of cybersquatting. Neiman Markus is seeking damages as well as an concern human relationship of profits, only the possessor of Neiman Barkus has expressed his conclusion to fight.

* Businessweek reports that the makers of MARSHMALLOW FLUFF are suing Williams Sonoma. The dispute surrounds the term FLUFFNUTTER, which has been used for a combination of MARSHMALLOW FLUFF as well as peanut butter. Now however, Williams-Sonoma are producing a chocolate-covered peanut butter candy which is beingness sold nether the FLUFFNUTTER mark.

says doggy style? fluffnutter? Perhaps these marks accept lost something inwards the transition from the U.S. to United Kingdom of Great Britain as well as Northern Ireland of Britain as well as Northern Republic of Ireland English.

Suckers For Punishment

Suckers for punishment: Qualtex become downwardly inwards CA

has exactly learned, via All England Direct, that the Court of Appeal has dismissed what he assumed was e'er going to endure a hopeless appeal inwards Dyson Ltd v Qualtex (UK) Ltd [2006] EWCA Civ 166 (Tuckey, Jacob together with Lloyd LJJ).

Dyson, a companionship that designed together with made vacuum cleaners, sued Qualtex for infringing its unregistered blueprint correct after Qualtex started making spare parts for Dyson cleaners. The parts (known equally ‘pattern parts’) were deliberately made to hold off equally similar equally possible to the originals. Qualtext said it was allowed to, since the spare parts brutal inside the 'must-fit' together with 'must'match' exceptions to s. 213 of the Copyright, Designs together with Patents Act 1988. It argued that s.213 applied to important areas of nigh of the parts; that closed to aspects of the designs inwards whatever number ineligible for protection, beingness simply surface decorations together with that Dyson's designs were non master for the purposes of unregistered blueprint correct since they were commonplace.

At trial Mr Justice Isle of Man held that Dyson's rights had been infringed. Essentially he found (i) that the parts did non autumn inside the ‘must fit’ together with ‘must match’ exceptions to blueprint right, (ii) that Dyson's designs were non mere surface decorations together with (iii) that they were master for the purposes of unregistered blueprint correct since they were non commonplace. The estimate added that, for the purposes of establishing the duration of unregistered blueprint correct (which is calculated past times relation to the 'making available for sale or hire' of articles made to a design), articles were ‘made available for sale or hire’ on their kickoff actual delivery: simply taking orders for hereafter delivery was non plenty for this purpose.

Qualtex appealed, maintaining that Isle of Man J (i) misconstrued ‘must fit’ thence equally to exclude cases where parts of an article did non touch; (ii) was incorrect to grip that the 'must fit' exclusion could non use where the articles were designed sequentially together with (iii) failed to adopt a practical approach to the exclusion. As to the ‘must match’ exception, Isle of Man J was (iv) incorrect to use the exam of considering whether at that spot was dependency of the kind, or to the extent, which would brand the afterward article inwards query radically dissimilar inwards appearance if the before article were non the form it was (the ‘radically different’ test). As for surface decoration, Isle of Man J (v) should non get got limited this exclusion to decorating a surface that was already there, the exclusion dealing alongside 3D shapes only. Qualtex likewise argued that (vi) closed to of the designs were ‘commonplace’, given the widespread cognition together with virtually measure blueprint for all vacuum cleaners at the time. Finally, (vii) an article was ‘made available for sale’ when orders for the article were truly taken.

Below, right: the latest Dyson model has a remarkable bird of functionality equally good equally a riveting blueprint ...

The Court of Appeal dismissed Qualtex's appeal,pretty good affirming both the conclusions of Isle of Man J together with the mode inwards which he reached them.

* As to 'must match', ane should inquire whether at that spot was a characteristic of form of the part which was subject on the appearance of the whole machine. The judge’s ‘radically dissimilar inwards appearance’ exam was exactly a way of looking at dependency. If at that spot was liberty inwards making a design, thence at that spot was no dependency.

* The provision had to endure approached bearing inwards heed that Parliament had non intended to exclude all spare parts, or fifty-fifty all externally visible portions of spare parts.

* Isle of Man J did non truly grip that a surface ornament could non endure three-dimensional.

* The exclusion of surface ornament covered what were essentially 2D designs on a 3D article: at that spot was no ground to bound surface ornament to a surface that was already there.

* After finding a blueprint to endure ‘original’ inwards the copyright sense, ane thence had to inquire whether that aspect was ‘commonplace’. H5N1 blueprint that became real good known could non lose the protection of blueprint correct past times becoming good known.

* Isle of Man J was entitled to uncovering that articles were ‘made available for sale or hire’ on their kickoff actual delivery, since the natural pregnant of the human face ‘made available’ meant something that was truly inwards existence.

assumes that the appeal was something to produce alongside the large amounts at stake, rather than on the merits of the diverse points on which the appeal was based. Merpel says, on this occasion nosotros agree: but the complexity together with opacity of draftsmanship of the blueprint provisions of the CDPA agency that you lot tin never endure solely certain what closed to of its provisions mean: maybe nosotros should enunciate a regulation that the interpretation of whatever slice of statute that you lot get got to read vi times inwards society to empathise it fifty-fifty ane time is e'er worth appealing against.

How vacuum cleaners piece of job here
How lawyers piece of job here

Citable At Last? Contest Reminders

here), the prize for which is gratuitous entry to CLT's pop as well as informative 8th Annual Information Technology Law Conference (programme details here). The prize is gratuitous admission to CLT's splendid as well as exciting one-day conference on Copying Without Infringing (programme details here), to live on held inwards London on Th 23 March 2006.

Right: copying - an fifty-fifty older pastime than infringing.

So if you lot desire to pass the twenty-four hours contemplating how much role a trouble concern tin induce out to brand of other people's merchandise marks, patents as well as copyrights without ending upward every mo an infringer, this is the house for you.

Conor Five Angiotech Again; Wye, O Wye ...

discussion on this blog. Influenza A virus subtype H5N1 friend of the IPKat who practises inward Federal Republic of Federal Republic of Germany has emailed him to say:

"Could it hold upwards that Pumfrey J. is writing amongst one-half an middle on the European Patent Office (EPO) Technical Board of Appeal, which must determine on the validity of the self-same Angiotech Euro-patent, sooner or later, using for the number of inventive pace the employment together with solution approach, together with having regard to the nature of the "contribution to the art" contained inward the patent specification past times the inventors.

The EPO opposition, past times the way, was initiated inward the saltation of 1998.

It strikes me that the Pumfrey conclusion gives the TBA a useful roadmap. But whether the TBA finds the Pumfrey specimen response inward whatever way helpful remains to hold upwards seen".

Thanks, says the IPKat - simply he wonders why Pumfrey J should hold upwards concerned to influence inward whatever way the number of the pending EPO opposition, or the way past times which it is achieved?


Statutory domination of a name: Wye not?

Left: Imperial College

One of the IPKat's correspondents has drawn his attending to a little-known slice of Great Britain legislation, Section 10 of the Imperial College Act 1999, which reads:

"(1) No mortal other than Imperial College shall, inside a menses of 25 years initiative off amongst the appointment on which this Act is passed, run either of the names mentioned inward subsection (2) below without the consent of Imperial College.

(2) The names referred to inward subsection (1) higher upwards are-

(a) Wye College; and
(b) The College of St. Gregory together with St. Martin at Wye".

Right: Wye College

The Kat's correspondent asks, would it hold upwards a breach of statutory duty fifty-fifty to advert the name, without consent – for 25 years? Merpel adds, how much would build barons similar Anheuser-Busch together with Intel pay to obtain that form out of protection!

French Online Copyright Bill: Circular 2

Businessweek reports that the French Government is trying to force through an amended version of its online copyright nib again. DRMs would become stronger protection, but a panel would oversee the measures to ensure that sure soul role exceptions would locomote maintained. Penalties for network ‘piracy’ would hit betwixt 38 together with 150 euros, rather than 300,000 euros equally originally proposed. Online sellers of music together with films would bring to brand them available inwards formats that tin sack locomote played on all types of devices, rather than but on devices made past times a unmarried manufacturer, such equally an iPod. However, i of the telephone substitution amendments called for past times the Bill’s opponents has been scrapped. The novel draft does non comprise provisions for a ‘global licence’, which would bring enabled users to pay a small-scale fee of a few euros that would bring entitled them to unlimited network downloads of copyright material.

notes that this sure enough gives weaker protection to copyright owners together with the ‘owners’ of DRM-protected plant that the master copy French proposal, but it nonetheless gives rigid protection to them piece level the residue past times placing requirements on them that volition locomote of produce goodness to users.

Apple Heading For Collision?; Adam Opel Example - The Ag Speaks

Fermenting trouble? Apple goes for MacBook

According to Appleinsider stylish figurer companionship Apple filed a the US merchandise grade application for the give-and-take "MacBook" end month.

notes how litigious burger-meisters McDonalds tin dismiss be, when confronted amongst alien applications to register words kickoff amongst "Mac". He every bit good records Apple's famous too on-going battle with Beatles' offshoot Apple Corps over the utilisation of the term Apple inwards honor of electronic devices for playing music. He only hopes this won't destination upwards inwards courtroom ... Merpel says, oh aye you lot attain - but you lot haven't quite worked out how to piece Schadenfreude.

Non-Apple MacBook here

Apple Insider here; apple tree inwards cider here


Replica ruling - an Advocate General speaks

Today brings a European Court of Justice Opinion from Advocate General Ruiz-Jarabo Colomer inwards Case C-48/05 Adam Opel AG v Autec AG, a reference for a preliminary ruling from the Landgericht Nürnberg-Fürth (Germany).

The questions referred to the ECJ are every bit follows:

"Does the utilisation of a merchandise grade registered every bit good for 'toys' institute utilisation every bit a merchandise grade for the purposes of Article 5(1)(a) of the Trade Mark Directive if the manufacturer of a toy model machine copies a existent machine inwards a reduced scale, including the merchandise grade of the proprietor of the merchandise grade every bit applied to the existent car, too markets it?

If the answer to Question inwards 1 is inwards the affirmative: is the type of utilisation of the merchandise grade described inwards Question 1 an indication of the variety or character of the model machine within the important of Article 6(1)(а) of the Trade Mark Directive?

If the answer to Question ii is inwards the affirmative:

In cases of this type what are the decisive criteria to last applied inwards assessing whether the merchandise grade corresponds to honest practices inwards industrial or commercial matters?

4. Is this inwards item the illustration if the manufacturer of the model machine applies to the packaging, too to an accessory required inwards lodge to utilisation the model, a grade recognisable to the merchandise every bit its ain merchandise grade together amongst its companionship yell too the address of its seat?"

The Advocate General's Opinion is non nonetheless available inwards English, but he advises the courtroom every bit follows (in French):

"62. gold vu des réflexions qui précèdent, je advise à la Cour de répondre au Landgericht Nürnberg-Fürth comme suit:

"1. L’utilisation d’un signe enregistré sur des jouets ne constitue pas un usage en tant que marque, au sens de l’article 5(1)(a)(a), de la Directive 89/104 ... lorsque le fabricant d’une maquette d’automobile reproduit à échelle réduite et commercialise une réplique d’un modèle réellement existant sur laquelle figure la marque du titulaire".

63. Dans l’hypothèse où la Cour ne partagerait pas ce betoken de vue pour la première question, je l’invite à répondre aux deuxième et troisième questions comme suit:

"2. La forme d’usage de la marque décrite dans la première inquiry constitue une indication relative à d’autres caractéristiques de la maquette d’automobile, au sens de l’article 6(1)(b), de la directive 89/104.

3. Dans des cas tels qu’en l’espèce, les critères pertinents pour déterminer si l’utilisation de la marque est conforme aux usages honnêtes en matière industrielle ou commerciale sont ceux dégagés par la jurisprudence de la Cour dans les arrêts Anheuser-Busch ainsi que Gillette Company et Gillette Group Finland, précités.

Lorsque le fabricant de la maquette d’une automobile appose sur l’emballage et sur un accessoire nécessaire à l’utilisation du jouet un signe reconnaissable dans le commerce comme étant sa propre marque ainsi que sa dénomination sociale avec indication de boy siège social, il agit conformément aux usages honnêtes en matière industrielle ou commerciale, sans préjudice de l’appréciation globale de toutes les circonstances pertinentes, qui incombe à la juridiction nationale".

This comes out inwards Babelfish, slightly edited past times the IPKat, as:

"62. ...I advise at the Court to ... answer ...: "1. The utilisation of a sign recorded on toys does non institute a utilisation every bit a mark, within the important of Article 5(1)(a), of Directive 89/104 ... when the manufacturer of a model of machine reproduces on a reduced scale too markets a counterpart of a actually existing model on which figures the grade of the holder ".

63. On the supposition that the Court would non percentage this betoken of persuasion for the foremost question, I invite it to answer the minute too 3rd questions every bit follows:

"2. The degree of utilisation of the grade described inwards the foremost inquiry constitutes an indication relative to other characteristics of the model of car, within the important of Article 6(1)(b),of Directive 89/104.

3. In cases such every bit inwards the species, relevant criteria to determine if the utilisation of the grade is inwards conformity amongst the honest uses out of affair industrial or commercial are those released past times the decisions of the Court inwards Anheuser-Busch too Gillette Company too Gillette Group Finland, mentioned inwards a higher house . When the manufacturer of the model of a machine affixes on packing too on an accessory necessary to the utilisation of the toy a recognizable sign inwards the merchandise every bit existence his ain grade similar his companionship yell amongst indication of his registered office, it acts inwards accordance amongst the honest uses inwards industrial or commercial matters, without harm of the overall assessment of all the relevant circumstances, which ut falls on the national jurisdiction to decide".

This conclusion seems both reasonable too predictable to the IPKat, who wonders if his readers agree.

Tpms Are Ok Subsequently All, Says French Court; Ip Remedies Mass Review

here) equally a triumph for the versatility of the IP organization rather than equally a craven cop-out or a ransom demand.

is left feeling actually rattling piteous near all this. the United States of America scholars accept a vast reservoir of empirical information upon which to draw, inwards the course of study of a vast corpus of reported decisions as well as a large, vibrant literature to render hypothesis, stimulus as well as provocation inwards turn. Over hither inwards Europe nosotros accept enough of theory but, fifty-fifty inwards countries where at that topographic point is a rigid tradition of reporting cases, there's nevertheless non much guidance equally to what the courts actually produce when addressing issues of quantum. There are some exceptions - the United Kingdom of Great Britain as well as Northern Ireland literature as well as illustration constabulary on interim injunctive relief beingness 1 of them - only on the whole nosotros are a lot amend at preaching than nosotros are at precise analysis. Merpel says, if yous desire some decent literature on the subject, halt moaning - larn as well as write it!

Publisher: Cambridge University Press. Price: a highly reasonable £17.99 for fiddling over 304 pages. Rupture element zero: this is a paperback that fifty-fifty a de-energised wimp tin terminate comport around amongst danger. ISBN 0521540674.