Importers Grouchy Near Seized Cigars; Wake-Up Telephone Telephone Inwards Mattress Case

Can nosotros postulate maintain our habanos dorsum please?

Mastercigars Direct Ltd v Hunters & Frankau Ltd [2006] EWHC 410 (Ch) is a Chancery Division conclusion given past times Judge Michael Fysh QC, sitting on Fri as a High Court guess (he is improve known as the Patents County Court judge). The judgment is huge (you tin read it hither inwards total on BAILII), but the IPKat must confess he works life it starting fourth dimension on LexisNexis/Butterworths' All England Direct subscription service.

The proceedings concerned a merchandise score dispute inwards honor of the import into the Great Britain of many well-known brands of habanos (hand-rolled Cuban cigars). The dispute arose from the ongoing draw of piece of job organisation past times CHSA, the Cuban proprietor of the merchandise marks inwards issue, as to the legitimacy of importing habanos which had been purchased from official sales outlets inwards Republic of Cuba together with afterwards imported into the Great Britain past times anyone other than Hunters & Frankau (CHSA’s sole Great Britain distributor).

Mastercigars Direct, who imported together with owned a item consignment of habanos, sought the liberate of that consignment from HM Customs together with Excise (HMCE), which seized the consignment nether its statutory powers on the grounds that it contained counterfeit goods that infringed CHSA’s merchandise marks. Mastercigars, denying that the cigars were counterfeit or that they infringed CHSA’s merchandise marks, sought declaratory relief to that effect, relying on the history of before consignments to demonstrate a previous classify of dealing together with thence consent on the business office of CHSA.
Judge Fysh QC allowed entirely business office of Mastercigars' claim. Mastercigars had failed to seek that CHSA had consented to the importation of either the consignment inwards conform or whatsoever of the 'historic' consignments. However, the evidence supporting the disceptation that the cigars were counterfeit was "riddled amongst mysteries, lacunae together with procedural unfairness" to Mastercigars Direct.

has latterly been considering the ECJ's conclusion inwards Case C-405/03 Class International, as good as this decision. The ECJ was criticised for making it also hard for merchandise score owners to command potentially infringing activities inwards honor to goods imported from exterior the EEA; but hither it appears that it's only as hard for the owners of allegedly infringing goods to larn them dorsum into circulation again. Merpel says: you're non suggesting that the constabulary is perfectly balanced when it's every bit inconvenient for both sides, are you?

More on cigars here
How to topographic point a mistaken cigar here


ECJ wake-up telephone telephone inwards mattress case

It may postulate maintain taken a hateful solar daytime or 2 to larn on to the Curia website, but Case C-421/04 Matratzen Concord SA v Hukla Deutschland SA, end Thursday’s ruling of the European Court of Justice, is forthwith available.

Hukla owned the Castilian merchandise score MATRATZEN for beds, sofa beds together with military camp beds. Matratzen sought to cancel the score before the Barcelona Court of First Instance, objecting that the discussion ‘matratzen’ meant ‘mattress’ inwards German. Accordingly the discussion of which the score consisted was generic together with could mislead consumers regarding the nature, quality, characteristics or geographical rootage of products bearing the merchandise mark. After the courtroom rejected the action, Matratzen appealed to the Provincial Court of Barcelona, which stayed the proceedings together with referred the next query to the European Court of Justice for a preliminary ruling as to whether Articles 28 EC together with xxx of the European Treaty must survive interpreted as pregnant that they foreclose the registration inwards a Member State, as a national merchandise mark, of a term borrowed from the linguistic communication of some other Member State inwards which it is devoid of distinctive grapheme or descriptive of the goods or services inwards honor of which registration is sought.

Side-stepping the query past times answering it inwards damage of the merchandise score harmonisation directive rather than the European Treaty itself, the Court ruled:

Article 3(1)(b) together with (c) of Council Directive 89/104 does non foreclose the registration inwards a Member State, as a national merchandise mark, of a term borrowed from the linguistic communication of some other Member State inwards which it is devoid of distinctive grapheme or descriptive of the goods or services inwards honor of which registration is sought, unless the relevant parties inwards the Member State inwards which registration is sought are capable of identifying the pregnant of the term.

The courtroom explained that, as the registrability of merchandise score was a acre of constabulary that had been exhaustively harmonised, it was Directive 89/104, as a harmonising measure—and non the EC Treaty—that had to survive considered when deciding whether Community constabulary precluded the registration of a national merchandise mark.

agrees that this approach is the right one, though he notwithstanding wonders whether MATRATZEN should survive considered as validly registered for mattresses inwards Spain, given the large number of Germans who postulate maintain either retired to Espana or regularly vacation there: are they non also relevant consumers?

E(Instein) = M(Arks) C(Onsent) For Squares

brings intelligence of a decision on consent from the U.K. Trade Marks Registry.

Continental Shelf 128 (Shelf) was the assignee of the U.K. give-and-take score for EINSTEIN, registered for ‘articles of article of apparel included inwards Class 25’. The Hebrew University of Jerusalem (the University) applied to direct hold the score revoked nether s.46(1)(b) of the Trade Marks Act 1994 (TMA), arguing that it had non been used during the five-year menstruum of nineteen July 1999 as well as nineteen July 2004. If roughly utilisation could last shown during that period, the University argued that the score should last restricted inwards accordance alongside s.46(5) of the TMA.

Shelf filed show purporting to demonstrate genuine use. This consisted of 4 invoices which emanated from a companionship called Hornby as well as were addressed to a companionship named Jeevika International Limited. The invoices concerned men’s polo shirts, shorts, roll-neck jumpers as well as long-sleeved T-shirts which bore the give-and-take EINSTEIN alongside the kickoff alphabetic character written over a foursquare inwards a contrasting shade or colour. Sewn-in labels as well as swing-tags were also exhibited. In his witness statement, the sales executive of Hornby Street Limited stated that Hornby was a sis companionship of Shelf, as well as had used the EINSTEIN marks alongside the consent of Shelf.

Albert Einstein gives his considered persuasion of European Union merchandise score law

The application for revocation was allowed:

*The right enquiry when establishing the presence of consent is non whether the merchandise score has been used against the wishes of the proprietor. If it were, acquiescence would kicking the bucket synonymous alongside consent. Under s.100 of the TMA, the onus of proving such consent is on the mark’s owner. Evidence of such consent must last properly made out as well as cannot last left to probabilities or suppositions. Here at that spot was a disputation that Shelf as well as Hornby were sis companies, only at that spot was no show of this or explanation of what it meant. Accepting such a disputation was equally proof of consent would seat a premium on non putting inwards whatever evidence. As a result, Shelf’s supposed consent to Hornby’s utilisation of the EINSTEIN score was non made out.

*Even if Shelf had consented to Hornby’s utilisation of the EINSTEIN mark, it was non clear that consent lonely without command of Hornby’s activities (the ‘bare licence approach’) would last sufficient to keep the registration on the register. Although Art.10(3) of Directive 89/104 states that utilisation of a score alongside the consent of its proprietor is deemed to constitute utilisation past times the proprietor himself, next Heidelberger Bauchemie, Directive 89/104 must last read inwards as well as hence far equally is possible inwards the low-cal of the TRIPs Agreement. Art.19(2) of TRIPs states that utilisation of a merchandise score past times a 3rd political party must last recognised equally utilisation of the merchandise score for the role of maintaining the registration where the utilisation past times the 3rd political party is dependent area to the command of the merchandise score owner. This emphasis on ‘control’ is also apparent inwards the French as well as Castellano versions of that article.

*Additionally, recognising utilisation alongside the consent of, only without the command of, the merchandise score possessor equally sufficient to keep registration would last inconsistent alongside the essential business office of a merchandise score which, inter alia, offers a guarantee that ‘all the goods or services bearing it [the mark] direct hold been manufactured or supplied nether the command of a unmarried task which is responsible for their quality’.

*In this case, at that spot was nil to advise that Shelf had exercised whatever command over Hornby’s utilisation of the EINSTEIN mark, making the instance for maintaining registration fifty-fifty weaker.

*In the trial that the hearing officeholder was incorrect on the non-use point, he held that the registration should last express to ‘casual outer article of apparel for men inwards Class 25’.

reckons that the hearing officeholder is right – lack of objections sure enough can’t last equated alongside consent. What’s to a greater extent than interesting to him though is the means that the command number has been dealt with. For ane thing, it’s pretty rare to direct hold recourse to the TRIPs Agreement inwards domestic merchandise score proceedings. If such recourse is necessary, tin plough over the axe the affair actually last considered to last acte clair? Control is ane of those tricky topics that pops upwards inwards diverse places inwards merchandise score police delineate (take a expect at Mastercigars v Hunter & Frankau - which the IPKat volition last reporting on later), only which hasn’t been defined soundless past times the ECJ. More generally, consent equally a concept appears a number of times inside Directive 89/104. Here the hearing officeholder has read the term past times reference to the essential business office of a merchandise mark, only must such an approach last taken inwards all circumstances inwards which the term ‘consent’ is used? For example, the Directive allows a mark-owner to consent to the registration of a score which would otherwise conflict alongside his score nether the relative grounds. This has the potential to plough over consumers a faux message close beginning as well as command – should the concept of ‘consent’ also last read restrictively inwards these circumstances too?

Switzerland Ratifies Wipo Treaties

is grateful to Dr Emanuel Meyer of the Swiss Federal Institute of Intellectual Property, Copyright as well as Neighboring Rights, who has tipped him off that on Friday, the Swiss Federal Council adopted a legislative message to ratify the WIPO Internet Treaties (WCT as well as WPPT) as well as to brand conforming amendments to the Swiss Copyright Act.

's express French informs him that the primary changes to the Act are enhanced rights for performers as well as phonogram producers, as well as protection of technological protection measures.

A happy beneficiary of the novel Swiss performers' rights

Full details are available here.

says that it's evidently a adept fourth dimension for the WIPO Internet Treaties. Only inward Feb did the Britain innovate legislaiton that would permit it to ratify the WPPT.

Competition Results

IPKat Haiku competition

This is where the IPKat gets to denote the winner of his Haiku Competition. The prize, remember, is a costless house at CLT's Copying Without Infringing conference on Thursday 23 March. Well, Graeme Fearon (Thring Townsend) is our Haiku Laureate, having sent inwards these ii wonderful efforts:

Original plant -
Blooms of creativity.
Please don't selection the flowers

and

I institute this haiku
On the web. I tin copy
So I may, n'est-ce pas?

A unopen instant is Miri Frankel (Beanstalk Group, NY), alongside her ode to the ECJ ruling inwards Arsenal v Reed:

Reeds would last rich and
Teams wretched if courts convey badge
Of back upwards defence.

Other commendations become to Barbara Cookson, Caroline Day, Gino van Roeyen (anything that begins "Fresh infringing restrain ..." can't last all that bad).

World's best verse here
World's worst verse here


IPKat Spot the Fish competition

It's every bit good both the fourth dimension together with the plaice to denote the winner of the IPKat's Spot the Fish Competition. The prize is a costless house at CLT's 8th Annual Information Technology Law conference on Tuesday 21 March.

The sole winner (who skated it) is James Heath (News International), whose entry appears at the halt of this post. No carping, please. James, you'll shortly last herring from CLT ...

Commendations become to Matthew Rippon (Watson Burton), Andrea Glorioso (for his learned essay on Christians together with fish symbolism), Jeffrey Chau together with Davyd Chong.

Review Of The Copyright Tribunal

Dave Landau has written to the IPKat, informing him that the Patent Office is task a review of the Copyright Tribunal. The next appears on the Patent Office website:

Review of the Copyright Tribunal

The Patent Office is considering whether improvements could endure made inwards the means inwards which the Copyright Tribunal works. The effecting of improvements may quest amendment to the Copyright Tribunal Rules 1989 (as amended), consolidation of the statutory instruments governing the workings of the Tribunal, revision of the 1995 Practice Direction (as amended) as well as changes to the full general management of the Tribunal yesteryear the Patent Office.
More data nearly the Tribunal is available on this website.

The Patent Office would welcome whatsoever thoughts yous accept every mo to how the workings of the Tribunal mightiness endure improved. We are every mo good interested inwards your views on the rules nether which the Tribunal operates.

All comments should endure received yesteryear 31 May 2006.

If yous want to brand whatsoever comments delight address them to:

Mr C J Bowen
The Patent OfficeRoom
2B.46Concept House
Cardiff Road
Newport
South Wales
NP10 8QQ
E-mail: chris.bowen@patent.gov.uk
Fax: + 44 (0)1633 814122

Deep Links Together With Deep Cover

Danish deep linking example

is grateful to Edwin Jacobs of Law & Justice Blog for tipping him off that the Danish Maritime together with Commercial Court has found that deep linking (linking direct to a page or icon inside a webpage, rather than to the homepage) is non illegal. Ofir.dk, a spider web portal, deep linked to the Home estate agency. Although the conclusion is express to it facts, it appears that the courtroom brand full general comments inwards favour of deep linking equally a desirable characteristic of the cyberspace together with search engines. Also, the courtroom confirmed that Home’s online database did non count equally a database for the purposes of the Database Directive.

thinks this conclusion is right. Deep linking is indeed useful inwards damage of effective dissemination of information, equally long equally it is non used inwards a deceptive manner.


Footballers orgy - a copyright development

The Press Gazette reports that footballer Ashley Cole is thinking of adding a copyright claim to his libel activity against The Sun together with the News of the World. The News of the World claimed that 2 Premiership footballers, a participant together with a mobile band ready to vibrate were involved inwards an ‘orgy’ only gave no information that could position the three. The Sun after ran a storey concerning the appointment band Ashley Cole has given to his fiancé which included references to a mobile band ready to vibrate. The News of the World hence ran an obscured photograph said to position ane of the footballers together with the musicians. The editor of an online word service Pink News (proprietor, ane Benjamin Cohen, of the judicial review of Nominet fame) hence tracked downwardly together with published what he claims is the master copy version of the photograph via an online icon search adjacent to the motion painting published past times News of the World. The motion painting was found on the website of Choice FM DJ, DJ Masterstepz. DJ Masterstepz is straightaway suing the News of the World. His solicitors said:

"Although Masterstepz was non named inwards the articles, the fashion of publication has led to his beingness identified equally the DJ alleged to stimulate got been involved. The articles made work of a photograph of Masterstepz amongst footballer Ashley Cole, taken from the Choice FM radio station website, together with crudely pixillated inwards an endeavor to conceal their identities."

asks: (i) does the human activity of pixilation practise a novel copyright function (albeit ane which depends on infringing or hence other work)? together with (ii) practise nosotros stimulate got a moral correct to integrity example on our hands?

Mystery Gauge Rules Inward Tm Case; Latest Ecdr

here


ECDR - latest copyright cases

The March 2006 final result of Sweet & Maxwell's much-beloved, if lilliputian known, European Copyright in addition to Design Reports, has straight off been published. It contains 4 English linguistic communication versions of non-English decisions:

* Thane International's application , inwards which a High German Landsgericht explains that prior publication of an unregistered blueprint inwards the USA volition undermine European Union protection for it.

* Peter O**** v F****, an Austrian copyright illustration earlier the Supreme Court, dealing amongst the inquiry whether the making of a paradigm from a photograph of a bunch of grapes leads to legal liability.

* Yaacov v Inbar, inwards which the Tel Aviv District Court,in a conclusion since affirmed past times the Israeli Supreme Court holds a police trace pupil liable for turning his lecture notes into a Tort Textbook.

* Hotel de Girancourt v SCIR Normandie, where the French Cour de Cassation ruled that the possessor of a edifice has no proprietary correct to halt others taking photos of it.

There's every bit good the ruling of Judge Michael Fysh inwards Woodhouse v Aquila, the English linguistic communication Patents County Court conclusion on the important of the term "informed user" inwards U.K. blueprint law.

As ever, if you'd similar to recommend the IPKat cases that should hold out reported inwards the ECDR, e-mail him here and allow him know all almost it.