Archive for the ‘Intellectual Property’ Category
Monday, February 6th, 2012
The Court of Appeal has upheld an order from the High Court requiring Glenn Mulcaire, the private investigator at the centre of the News of the World phone hacking scandal, to reveal the names of anyone who instructed him to intercept Steve Coogan and Nicola Phillips’ phone messages. Mr Mulcaire has until 5pm today to appeal.
Mr Mulcaire attempted to rely on his right to privilege against self-incrimination (PSI), arguing that by revealing other names he would be liable to prosecution for conspiracy. However, the court held that PSI could be suspended in proceedings for breach of confidence under section 72 of the Supreme Court Act 1981. This would not compromise Mr Mulcaire’s right to a fair trial, because section 72 prevents incriminating statements or admissions being used in later proceedings, should they take place.
By accepting a definition of “confidential” including “private” and “commercial information”, the Court of Appeal effectively rendered PSI obsolete where any form of confidential information has been illegally obtained.
Dave Drew
0115 976 6226
ddrew@brownejacobson.com
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Tags: confidential information, Court of Appeal, glenn mulcaire, news of the world, nicola phillip, phone hacking, steve coogan
Posted in Intellectual Property | No Comments »
Friday, January 20th, 2012
The Patents County Court (PCC) has found that copyright in a predominantly black and white photograph featuring a red London bus on Westminster Bridge (below left), was infringed by a later image created by combining two images using image manipulation software (below right).
Although the two final images are clearly the product of different photographs, the PCC held that on a qualitative assessment Image 2 reproduced a substantial part of Image 1 and therefore infringed.
Given that the two images are taken from a very different perspective this decision seems to grant very wide copyright protection to the claimant. Here the defendant has infringed by reproducing an image of a classic London icon from a location which the judgment acknowledges is popular with photographers, and has applied a well-known editing technique to isolate the red colour of the bus.
Although there are similarities, this decision pushes the very limits of what is protectable in a photographic image.
Posted by Ryan Harrison, who specialises in intellectual property agreements and disputes, licensing, commercial contracts, and commercial and intellectual property issues arising from M & As and disposals.
Ryan Harrison
0121 237 3950
rharrison@brownejacobson.com
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Rating: 9.0/10 (2 votes cast)
Tags: copyright, new english teas ltd, patents county court, temple island collection ltd
Posted in Brands, Intellectual Property | No Comments »
Monday, January 16th, 2012
Today is the first working day of the obligation under the Localism Act 2011 for local authorities and single status fire and rescue authorities to produce a Pay Policy Statement. The government issued draft guidance for consultation before Christmas and once that comes out in final form authorities will know exactly what is expected.
While a lot of local authorities will already have started thinking about drafting a statement it will require a lot of input from both officers and members and will need to be approved by the full authority. This approval is aimed at making the authority more accountable to the local tax payers with the hope that the gap between the highest and lowest earners will reduce.
The policy must be applied from 1 April 2012 and it will be interesting to see if the government’s wish to effectively “cap” the pay of the most senior officers will come true.
Posted by Anja Beriro, who specialises in : local authority law, public sector procurements, commercial agreements, projects and shared services; clients: local authority and private sector bodies
Anja Beriro
0115 976 6589
aberiro@brownejacobson.com
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Tags: fire and rescue authorities, government bodies, local authorities, local tax payers, localism act 2011, Localism Bill, pay policy statement, Tax
Posted in Commercial Litigation, Government bodies, Local Authorities, Public Sector, Tax | No Comments »
Friday, January 13th, 2012
Yesterday ICAAN opened its doors to applications for generic top level domains (gTLDs). Applicants will be able to apply for specific words or letters as an alternative to the recognised top level suffixes of .com, .net and .org. Examples of early applications are .london and .pepsi (i.e. http://mybrand or customerservice@mybrand).
The changes have led to widespread concern, with companies fearing reputational damage if their key brands and trade marks fall into the wrong hands. However, with a non-refundable “evaluation fee” of $185,000 and careful policing promised by the registries, there should be a significant barrier in the way of most Internet fraudsters.
The industry is estimating we will see around 1,500 initial applications for gTLDs. In our opinion, gTLDs represent a new frontier on the Internet and, in turn, a great opportunity for companies to stake their claim with key trade marks or creative new branding.
Posted by Oliver Laing, who specialises in intellectual property agreements, anti counterfeiting and disputes relating to patents, copyright, trade marks, designs, as well as domain name disputes and reputation management.
Oliver Laing
0115 908 4854
olaing@brownejacobson.com
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Rating: 9.0/10 (2 votes cast)
Tags: Brands, gTLDs, ICAAN, Intellectual Property, top level domains, trade marks
Posted in Brands, Intellectual Property | No Comments »
Monday, January 9th, 2012
Richard Hooper, appointed by the government to conduct a study of the Digital Copyright Exchange (DCE) proposed in the Hargreaves Report on intellectual property rights, has called for evidence from interested parties . Submissions must be made by Friday 10 February.
The DCE is proposed as a solution to the problem of the collapsing value of creative content – which can be electronically replicated and shared – by creating a cheap and efficient online copyright licensing system. The Government hopes that this will harness the growth potential of creative industries and make the UK a leader in digital copyright services.
However, there was a note of uncertainty from Baroness Wilcox, the intellectual property minister, who indicated that it was still to be determined if the DCE was a “workable proposition.” Updating copyright law for the digital age will be complicated and, whatever the government’s decision, Hargreaves’ proposed completion date of the end of 2012 looks increasingly ambitious.
Dave Drew
0115 976 6226
ddrew@brownejacobson.com
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Tags: baroness wilcox, copyright, digital copyright exchange, hargreaves report, Intellectual Property, intellectual property law, intellectual property rights, online infringement, richard hooper
Posted in Brands, Commercial Litigation, Intellectual Property, Uncategorized | No Comments »
Monday, January 9th, 2012
Furnitureland went into administration in 2005. Its trade marks and the goodwill associated with them were sold to Furniture Village. In 2009, furnitureland.co.uk ltd was incorporated and obtained the domain furnitureland.co.uk.
Furniture Village brought a Nominet complaint about furnitureland.co.uk. The respondent claimed that, although he knew about Furnitureland, he thought they had stopped trading, and so his registration of the domain name was in good faith.
Both the first instance Expert and Appeal Panel agreed, so the respondent gets to keep the domain furnitureland.co.uk, which it is using as a click through website.
The case shows that the Nominet DRS is not suitable unless the complainant can clearly show the registrant knew of the complainant’s rights.
Faced with similar facts, brand owners should consider a passing off or trade mark action, which may have a better chance of succeeding.
It is also worth noting that the panel maintained the DRS’s reputation for speed by refusing to stay the appeal because of a pending trade mark revocation.
Posted by Giles Parsons, who specialises in intellectual property agreements and disputes relating to patents, copyright, trade marks, designs, as well as domain name disputes and reputation management.
Giles Parsons
0121 237 4557
gparsons@brownejacobson.com
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Tags: Copyright Designs and Patents Act, domain registration, Intellectual Property, intellectual property law, intellectual property rights, Nominet, patent, Trade Mark
Posted in Brands, Commercial dispute resolution, Intellectual Property | No Comments »
Wednesday, December 21st, 2011
After a lengthy legal dispute, the International Trade Commission (a US trade panel that investigates patent infringement involving imported goods) has ruled that HTC phones infringe one Apple patent.
HTC will by 19 April 2012 remove from all their devices the infringing feature, which enables the user to convert embedded data (such as a phone number) into a hyperlink.
The ITC embarked on their initial investigation in April 2010 after Apple complained that HTC infringed ten patents, which could have led to a ban of all HTC devices in the US market. Apple later dropped six patents and an ITC judge ruled that HTC had infringed two of the remaining four patents. This overdue final ITC decision, which follows a request for a review of their previous ruling from both companies, has been welcomed by the Taiwanese mobile phone-maker.
This result will be of interest to those following the patent disputes that Apple are embroiled in relating to Android technology, most notably with South Korean rival Samsung.
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
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Tags: android, Apple, copyright, Copyright Designs and Patents Act, HTC, International Trade Commission, patent, Samsung, smartphone
Posted in Advertising & Marketing, Brands, Intellectual Property | No Comments »
Friday, December 16th, 2011
The ECJ ruling in Frisdranken Industrie Winters BV v Red Bull GmbH may make it harder to enforce trade mark rights against “behind the scenes” service providers who participate in the production of infringing goods.
Winters, a Dutch company, filled cans branded with names like “Bullfighter” and “Pitbull” with soft drink mix. The cans were produced by Smart Drinks, who then sold the finished products. As Smart Drinks were registered in the British Virgin Islands, Red Bull sued Winter for infringement of its Benelux trade mark.
The ECJ ruled that service providers would not infringe trade marks when executing a technical part of the production process of the final product where they had no interest in their external presentation. Winter created the technical conditions for Smart Drinks to use the products, but did not use the products themselves.
This position is likely to be controversial. The European Commission noted that this may allow producers to avoid enforcement by dividing the production process amongst such service providers.
Dave Drew
0115 976 6226
ddrew@brownejacobson.com
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Tags: benelux trade mark, European Commission, frisdranken industrie winters bv v red bull gmbh, smark drinks, trade marks
Posted in Intellectual Property | No Comments »
Thursday, December 15th, 2011
Today, Advocate General Mengozzi delivered his opinion to the Court of Justice of the European Union (CJEU) on some “short” and “simple” questions referred to the CJEU by the English Court of Appeal in the case of Football Dataco Ltd and Ors v Yahoo! UK Ltd.
The Opinion relates to the scope of copyright protection for databases. The Opinion states that a database, including the likes of football fixture lists and TV listings, can only be protected by copyright if it is an original intellectual creation of its author. Any creative effort in determining the elements of the database is a data creation activity and so does not count.
AG Mengozzi’s Opinion, if followed by the CJEU, will be a blow to the creators of sporting fixture lists and similar databases. No matter how much creative effort goes into the difficult task of creating a set of sporting fixtures, copyright in the database will only subsist if the presentation of the database is also in some way creative.
Posted by Mark Daniels, who specialises in intellectual property dispute resolution involving infringement and validity of patents, trade marks, designs and copyright, as well as reputation management and domain name disputes.
Mark Daniels
0121 237 3993
mdaniels@brownejacobson.com
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Tags: advocate general, CJEU, Copyright Designs and Patents Act, court of justice, football fixtures, Intellectual Property, patent infringement, patent protection, premiership football games, Yahoo
Posted in Brands, Intellectual Property | No Comments »
Friday, December 9th, 2011
The Government’s UK Border Agency has warned shoppers of a flood of counterfeit products coming into the UK in time for the festive season.
Counterfeit products such as toys, electronics and beauty products all pose a potential health risk due to the use of banned chemicals or unsafe electronics.
For the companies whose products are being counterfeited it poses a concern not only for their customers’ safety, but also for the damage these inferior quality and potentially dangerous products could do to their reputation.
While stopping all counterfeit goods entering the UK is impossible, a strong and structured approach can be taken. In particular, customs watches can be set up with the UK Border Agency who will seize infringing goods of which it becomes aware, preventing their access into the UK. Once confirmed as counterfeit, goods are then destroyed.
In our view failure to control the influx of counterfeit products can cause irreparable damage to a company’s reputation and, as we have all seen, can be the death of a premier brand.”
Posted by Oliver Laing, who specialises in intellectual property agreements, anti counterfeiting and disputes relating to patents, copyright, trade marks, designs, as well as domain name disputes and reputation management.
Oliver Laing
0115 908 4854
olaing@brownejacobson.com
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Tags: Brands, Copyright Designs and Patents Act, counterfeit goods, counterfeiting and copyright infringement, Intellectual Property
Posted in Brands, Intellectual Property | No Comments »
Friday, December 9th, 2011
A Strategy published yesterday and highlighted by the IPO’s press release sets out measures to help small and medium size businesses protect their IP rights.
The strategy picks up a number of proposals for the future (such as the creation of a register of IP advisors, online training tool, and provision of audits) and some that are already in place such as online patent service “Ipsum” which allows businesses to find patents and related documentation online.
All steps are welcomed if they result in SME’s developing and protecting IP. So often SMEs only become aware of IP rights and their protection as a result of an internal dispute or on the departure of a key developer. Lets hope these measures will allow SMEs to be sufficiently informed at an early stage to prevent unnecessary disputes from arising.
Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.
Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com
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Tags: Copyright Designs and Patents Act, Intellectual Property, ip, IPO, Ipsum, SME's
Posted in Advertising & Marketing, Brands, Intellectual Property, Retail | No Comments »
Friday, December 9th, 2011
Following our recent blog on UK businesses’ anger at China’s apparent ‘flouting’ of Intellectual Property (IP) rights, the government’s appointment of the UK’s first ever IP Attaché has been announced.
Tom Duke will be based at the British Embassy in Beijing and will be responsible for providing UK companies trading in China with support and advice about the enforcement of IP rights.
In making the announcement, Baroness Wilcox (UK Minister for IP) commented on the opportunity that the Chinese market represents for UK businesses, stating that trade between the two nations was last year worth an estimated £42 million; she noted ‘we need an efficient global intellectual property system where businesses have the confidence to trade in growing markets’.
This appointment will be welcome news to UK companies such as Dyson who, we reported this week, are put off from dealing in China despite its rapid growth, due to the apparent lack of monitoring of domestic infringers of UK IP rights.
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
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Tags: baroness wilcox, Brands, Copyright Designs and Patents Act, copyright infringement, Dyson Ltd, Intellectual Property, IP Attache, Retail, Tom Duke
Posted in Advertising & Marketing, Brands, Intellectual Property, Retail | No Comments »
Monday, December 5th, 2011
Sir James Dyson has warned that China’s reputation risks being tarnished in the eyes of foreign investors due to their approach to IP rights.
In advance of this week’s Intellectual Property Office (IPO) symposium, which will be attended by trade representatives from China and the UK (including the UK Minister for IP- Baroness Wilcox), Dyson warned that China faces expulsion from the World Trade Organisation (WTO), the body that enforces global trade rules.
Dyson, a member of the prime minister’s business advisory group, suggests that China is creating an unlevel international playing field which prevents foreign companies enforcing their rights against Chinese infringers by maintaining a patent application process in which Chinese applications are passed in less than a year, compared to five years for foreign businesses.
China’s approach to IP right enforcement is likely to be of increasing interest to UK companies eager to protect their products, should the emerging market continue to pursue rapid economic growth without attempting to monitor domestic infringers.
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
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Tags: Brands, Copyright Designs and Patents Act, Dyson Ltd, Intellectual Property, patent applications, Retail, UK Intellectual Property Office, world trade organisation
Posted in Advertising & Marketing, Brands, Intellectual Property, Retail | No Comments »
Wednesday, November 30th, 2011
In yet another development in the debate on Facebook privacy settings, the US Federal Trade Commission (FTC) has announced the imposition of various privacy requirements upon the company over the next 20 years.
The initial complaint to the FTC mainly related to changes Facebook made in 2009 that allowed public access to content on pages that users believed were private or inaccessible. The new imposed measures require the company to inform users as to how their data is shared, to obtain express consent to override their privacy settings, and to conduct an independent privacy audit every two years
Mark Zuckerburg, the founder of Facebook, yesterday acknowledged that the company had made a ‘bunch of mistakes’ that had ‘overshadowed much of the good work we’ve done’, whilst pointing to various privacy improvements they had since made.
This is the latest development in the ongoing battle over internet privacy between the FTC and internet companies.
It will be interesting to see how Facebook balance the new privacy requirements with their aim to provide automatic ‘frictionless’ sharing by users.
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
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Tags: data, Facebook, mark zuckerburg, privency settings, us federal trade commission
Posted in Intellectual Property | No Comments »
Wednesday, November 30th, 2011
The ECJ has ruled that courts of member states cannot force ISPs into broad filtering and monitoring of their user’s access to copyright-infringing file-sharing websites.
It follows an order by a Belgian court that an ISP (Scarlet) must implement a filtering system to block their user’s ability to send and receive files containing musical works using file-sharing software without the copyright-holders permission.
The ruling does not prevent the blocking of specific illegal file-sharing sites by ISPs as in BT and Newzbin’s case; however the ECJ ruled the filter system ordered in this case, in which the ISP was expected to install the system at its own expense and use it for an unlimited period to indiscriminately monitor all customer’s electronic communications, was contrary to EU law and fundamental rights, including the E-Commerce Directive.
This ruling will be welcomed by both ISPs and campaigners for internet freedom, particularly those following the relationship between the E-Commerce Directive and the Digital Economy Act.
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
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Tags: copyright, digital ecomomy act, e-commerce directive, ECJ, file sharing websites, illegal file sharing, ISP's, newzbin's case
Posted in Intellectual Property | No Comments »
Thursday, November 24th, 2011
Following on from the recent decision on Cadbury’s trade marking of the colour purple, the US fashion industry has also recently considered colours as trade marks. The American retailer Tiffany’s, (who already hold a number of trade marks for a blue colour) is supporting Christian Louboutin’s appeal against a court decision which stated that a single colour for fashion items is never subject to protection.
Many companies will be closely following the development of colours as trade marks; the often strong association of a colour with a brand or type of product by consumers is something many will want to closely protect, whilst others will be concerned about being increasingly restricted in their use of colours on packaging.
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
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Tags: branding, cadbury, christian louboutin, colour trade marks, tiffanys, us fashion industry
Posted in Advertising & Marketing, Brands, Intellectual Property, Retail | No Comments »
Wednesday, November 23rd, 2011
The UK’s Trade Mark registry has ruled that chocolate manufacturers Cadbury can continue to trade mark a particular shade of purple used on its packaging, following a challenge by rival brand Nestle on the basis that Cadbury’s use of the purple colour was not distinctive enough to warrant protection.
Cadbury are likely to claim as a victory the ruling that they have built up enough distinctive character in their purple shade through their use of it on chocolate in bar and tablet form and eating and drinking chocolate products.
However, it is worth noting that the registry agreed with Nestle that this distinctive association did not extend to their chocolate cakes, chocolate assortments, and some confectionery chocolate, and therefore Cadbury’s attempt to register trade marks in these areas was refused. Nevertheless, many will regard this as a victory for Cadbury in its long-running battle with Nestle.
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
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Tags: cadbury, colour trade marks, distinctive character, Intellectual Property, nestle, trade marks
Posted in Advertising & Marketing, Brands, Intellectual Property | No Comments »
Friday, November 11th, 2011
On 2 November 2011, the British Supreme Court unanimously ruled in favour of Human Genome Sciences Inc. (HGS) in its dispute with Eli Lilly & Co, over the validity of a patent for a protein and gene sequence, Neutrokine-α.
Overturning the unanimous decisions of the Court of First Instance and the Court of Appeal, the Supreme Court has set an important precedent.
Based on knowledge of similar gene sequences, HGS claimed that Neutrokine-α could be used to treat conditions involving the immune system. The Court of Appeal held the patent held invalid for lack of industrial applicability as its use was too speculative.
The Supreme Court, having clearly been influenced by the wider consideration of public policy, held that the use of the gene need not be demonstrated, but must only be plausible. The decision has lowered the hurdle for patentability and has relaxed the standard of industrial application – an ‘educated guess’ for the use of an invention can now suffice.
Eli Lilly & Co still consider the patent is invalid, and the case is now likely to return to Court to determine the issues of obviousness and insufficiency.
Posted by Peter Ellis, who specialises in commercial litigation or dispute resolution; intellectual property disputes e.g. trade marks, copyright, designs issues; breach of contract and claims through interruptions to trade.
Peter Ellis
0115 976 6269
pellis@brownejacobson.com
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Tags: british supreme court, eli lilly& co, human genome sciences Inc, neutrokine-a, Patents
Posted in Intellectual Property | No Comments »
Wednesday, November 9th, 2011
Dyson has lost its appeal against the High Court’s decision that Vax’s Mach Zen vacuum cleaner does not infringe Dyson’s registered design for its DC02 vacuum cleaner.
The High Court had dismissed Dyson’s infringement claim on the basis that the Mach Zen produced a different overall impression on the informed user. Dyson appealed the decision but the Court of Appeal dismissed the appeal emphasising that the key legal issues was whether the Mach Zen did or did not produce on the informed user a different overall impression and, in this case, the Mach Zen did indeed produce a different overall impression with the court noting that there were in fact ‘substantial differences’.
This case is a reminder that even if you have broad registered design protection, the use by a third party of a similar design will not amount to infringement if that design produces a different overall impression on the informed user (a knowledgeable user of the product).
Posted by Sara McNeill, who specialises in non-contentious intellectual property matters, including licensing, franchise, collaboration and development arrangements and IP audits and strategy; experienced in drafting and advising on commercial agreements.
Sara McNeill
0121 237 3930
smcneill@brownejacobson.com
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Tags: appeals, design protection, Dyson Ltd, High Court, Intellectual Property, ip infringement, product design, Retail, Vax Ltd
Posted in Brands, Intellectual Property, Retail | No Comments »
Thursday, October 27th, 2011
The European Court of Justice (ECJ) has followed the Advocate General’s opinion by dismissing an appeal against the General Court’s ruling that Pepsi’s design registration for “pogs” was invalid.
The design was previously ruled invalid because it did not create a different overall impression on the informed user than an earlier Promer design. A key facet of Pepsi’s appeal was that the General Court had incorrectly defined the “informed user” and his level of attentiveness.
The ECJ disagreed with Pepsi and stated that informed user lies “somewhere between … the average consumer… who need not have any specific knowledge and who, as a rule, makes no direct comparison between the trade marks in conflict, and the sectoral expert, who is an expert with detailed technical expertise”.
Although this is a welcome clarification, this case concerned a very simple design, and it seems likely that the courts will continue to grapple with this concept in less straightforward design fields.
Posted by Ryan Harrison, who specialises in intellectual property agreements and disputes, licensing, commercial contracts, and commercial and intellectual property issues arising from M & As and disposals.
Ryan Harrison
0121 237 3950
rharrison@brownejacobson.com
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Tags: community designs, ECJ, European Court of Justice, Intellectual Property, ip, pepsi, pogs, product design, registered designs, Trade Mark, trade marks
Posted in Intellectual Property | No Comments »
