Mr Justice Arnold dismissed the claim, deciding the two designs gave a different overall impression to the informed user of vacuum cleaners. He based this on the significant differences between the two machines; stating the Dyson machine gave a smooth, curving, elegant impression whereas Vax’s machine gave a rugged, angular, industrial and even rather brutal impression!

Despite the judge’s complementary take on its design Dyson are very unlikely to be satisfied with this decision. Dyson have historically gone to great lengths to protect their famous intellectual property. It therefore seems very likely that they will try to appeal it, in which case there is a likelihood of a referral to the ECJ.

Posted by Oliver Laing
0115 908 4806
olaing@brownejacobson.com.com

By ruling of Mr Justice Morgan earlier this week, the High Court declined to grant the above relief, leaving publishers HarperCollins free to proceed with its proposed release. The Court’s reasoning is presently unknown and may remain so for some time as it is understood that judgment is to be given in private. One can only speculate, therefore, that the BBC may have been unable to show the necessary quality of confidence in Stig’s identity to persuade the Court that an injunction was appropriate (speculations about Mr Collins’ alter ego having been published as long ago as January 2009). Alternatively, HarperCollins may have successfully relied on Mr Collins’ right to freedom of expression, enshrined in Article 10 of the European Convention on Human Rights, to defeat the BBC’s application.    

Of course, just because the BBC has lost the battle for an interim injunction, doesn’t mean that it will not ultimately be entitled to compensation for what may have been a breach of an equitable and/or contractual duty of confidence by Ben Collins. If this happens, Mr Collins may find a significant proportion of his royalty income wending its way towards dear old Auntie.

Some say…  it’s not over yet!

Posted by Richard Roberts, who specialises in intellectual property law including patents, copyright, trade marks, passing off, designs and breach of confidence; regular speaker on IP issues.

Richard Roberts
0115 976 6199
rroberts@brownejacobson.com

Oracle deliberately does not publish information about whether its goods have first been sold in the EEA, making it virtually impossible for re-sellers to know where the goods were first marketed. This acts as a deterrent to the importation of Oracle hardware generally, regardless of place of first marketing.

M-Tech said Oracle’s policy was contrary to European competition law but the High Court granted summary judgment in Oracle’s favour. The decision was overturned by the Court of Appeal who decided that M-Tech had a real prospect of success with its so called “Euro-defences”.

M-Tech still needs to establish those arguments in order to win its case and we could be waiting some time for an answer, given that a reference to the Court of Justice of the European Communities looks likely.

Posted by Emma Tuck, who specialises in Intellectual property disputes relating to patents, trade marks, designs and copyright; non-contentious intellectual property matters including advising on licensing, assignment, confidentiality and collaboration agreements

Emma Tuck
0121 237 3908
etuck@brownejacobson.com

Presumably, if Mr Collins is the current Stig (or perhaps one a number of Stigs) there will be restrictive covenants in place. If Mr Collins is merely a former Stig then the contractual position may be more complicated. Even so, one must fancy the BBC’s chances of showing that any such disclosure is/was a breach of confidence at common-law (although interim injunctive relief would appear impossible given that the Stig is out of the bag, so to speak).

Either way, The Stig’s secret identity is a key theme of the show. If Mr Collins is the current Stig, the BBC will surely move quickly to replace him.

Posted by Nick McDonald, who specialises in intellectual property law including copyright, patents, trade marks, passing off, design disputes, breach of confidence, database rights and IT.

Nick McDonald
0115 976 6198
nmcdonald@brownejacobson.com

In 2008, The Spectator published an article on its website which said:

“As Harry’s Place points out:-Demos sponsored and participated in a debate at IslamExpo and a seminar on ‘Political Islam’. That’s right: a left of centre think tank worked with a clerical fascist party to organise a conference about its racist, genocidal, theocratic political programme.”

Islam Expo Ltd, the organisers of the event, sued for libel. The Spectator argued that the court should look at the source of the quotation which was linked to the article. From this, it argued, it was clear that ‘party’ must be a reference to the British Muslim Initiative or the Muslim Brotherhood.

However, as the words ‘IslamExpo’ appeared in the short quotation in the Spectator’s article, and the original article also said that the British Muslim Initiative, Muslim Brotherhood and Islam Expo “are one and the same”, Tugendhat J held that the words were capable of referring to the organisers.

The judge emphasised that he did not intend to rule whether looking at hyperlinked documents was right in law – but in cases like this, where one internet posting comments on another, it must be sensible to look at the original posting to ascertain the meaning of the second post.

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

Posted by Sara McNeill
0121 237 3930
smcneill@brownejacobson.com

The defendants’ argument that the chips allowed users to play home-made games was rejected by the judge – the existence of a non-infringing use did not provide a defence.

The decision, which sets an industry precedent, will provide comfort to game and console manufacturers who have seen their sales suffer as a result of online piracy. More importantly, it will have some impact because Nintendo has tackled the technology that makes piracy possible, rather than fruitlessly pursuing individual downloaders.

Posted by Ryan Harrison
0121 237 3950
rharrison@brownejacobson.com

The agreement, which imposed a restriction that was much longer than the industry standard, was a restraint of trade and therefore unenforceable. The judge also considered Rooney’s age at the time the agreement was executed (he was only 17) and concluded that the agreement was not the result of a negotiation between equals.

The case illustrates the dangers of imposing lengthy restraints, particularly where these exceed industry standards (FIFA regulations stipulate a cap of 2 years for on-field agreements). Rooney was “delighted to have won this case” and the £4.3m he saved no doubt came in handy during Wayne and Coleen’s recent holiday in Barbados.

Posted by Ryan Harrison
0121 237 3950
rharrison@brownejacobson.com

SABIP’s vision was to ensure “the UK’s IP framework rewards innovation and creativity and provides incentives for these to flourish.  It seeks to embrace the changing global context and balance the needs of industry, artists and consumers alike.”

Only set up in 2008, SABIP has hardly had an opportunity to make its mark. Its evidence-based approach to change appeared logical and sensible.  Its lasting legacy will be its report into the relationship between copyright and contract law. This report was met with mixed reaction particularly from those wary that SABIP’s willingness to consider alternative rewards to copyright might lead to an erosion of that right.

Many are simply asking ‘What did it do anyway?’ which presumably formed part of Vince Cable’s thinking when dissolving the quango.

Posted by Mark Daniels
0121 237 3993
mdaniels@brownejacobson.com

Applications for a European Community Trade Mark, and (since October 2007) for a UK trade mark, are not subject to examination on relative grounds. Instead, existing trade mark owners are notified of applications that may conflict with their registered, and given the opportunity to object – meaning that UK and Community trade mark owners must police applications. 

The UKIPO changed the system of registration to make it more similar to the CTM system – but it is clear that the system in Ireland is easier both for smaller businesses that cannot afford to invest heavily in policing their portfolio, and for consumers, who have a better guarantee of the origin of their goods.

Posted by Giles Parsons
0121 237 4557
gparsons@brownejacobson.com

The Supreme Court has upheld the Federal Court’s view that an invention is patentable if it is “tied to a particular machine or apparatus” or if it “transforms a particular article into a different state or thing”, but has refused to confirm that this is the exclusive test.

It has however refused to endorse the earlier, far wider test requiring the invention merely to produce a “useful, concrete and tangible result”, which was set down in the State Street case, and which caused the patent applications to come flooding in. So at least the hi-tech world knows that there are some boundaries, but I suspect that is scant consolation.

Posted by Mark Daniels
0121 237 3993
mdaniels@brownejacobson.com

The women are accused of contravening the Merchandise Marks Act by abusing a trade mark. However, the difficulty in this case is that no mark of the company is visible on the dresses and it is therefore hard to see exactly what trade mark has been used.

The case demonstrates that organisations such as FIFA take ambush marketing extremely seriously and will crack down hard where they see examples of it. However it also illustrates that, no matter how draconian the legislation or the enforcement of it, ambush marketers will always be one step ahead.

One thing is certain: during the 2012 London Olympics, ambush marketers will find new ways to advertise their brand without paying hefty sponsorship fees. So, let the games begin!

Posted by Nick McDonald
0115 976 6198
nmcdonald@brownejacobson.com

The judge recognised that any definition of “defamatory” must incorporate some qualification or threshold of seriousness, so as to exclude trivial claims. He preferred the following definition: 

“the publication of which he complains may be defamatory of him because it substantially affects in an adverse manner the attitude of other people towards him, or has a tendency so to do”.

This interpretation provides defendants with another weapon in their armoury. Plus in an increasingly pro-publisher environment, coupled with the prospect of claimants not being able to recover success fees and ATE insurance premiums from defendants, it may make potential claimants think twice before commencing an action.

Posted by Mark Daniels
0121 237 3993
mdaniels@brownejacobson.com

Omega Engineering argued that Omega SA had no right to oppose its application to register OMEGA in respect of certain goods since it had expressly agreed not to do so under a co-existence agreement between the two parties. Omega SA argued, amongst other things, that the co-existence agreement was irrelevant to an objection made on relative grounds. Mr Justice Arnold disagreed stating that it would be unjust if a party who had consented to the registration of a trade mark could successfully oppose the application to register it.

This has to be the right decision otherwise the usefulness of co-existence agreements would be severely threatened.

Posted by Sara McNeill
0121 237 3930
smcneill@brownejacobson.com

For the first time copyright owners will be able to receive a list of infringers for the purpose of bringing legal proceedings and apply to find out the names of those who are alleged to have infringed.  ISPs may also be required to limit or even block internet use.

The Act (and code) will inevitably make an ISP’s life more complicated, since, as well as blacklisting its own customers, there is a risk they become drawn into the inevitable claim, counterclaim and appeal between copyright owner and alleged infringer.

Posted by Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com

European Directive 98/44 EC explicitly said that biotech patents can be granted, although certain things including plant or animal varieties or the discovery of human genes were not patentable. However, the specific drafting of a claim is a different matter, and Venter’s patent’s claims were originally very broad.

Venter’s patent application is being examined by the EPO. Objections to the initial application were made by the examiner in April 2009, which the examiner said were “such that there is no possibility of overcoming them by amendment”. A reply was filed in February 2010, reducing the claims from 28 to 20, and having spent a reported $40 million to create the synthetic DNA, there is no doubt that Synthetic Genomics, the company in whose name the patent was filed, will fight hard to get all the patent protection it can get. It will be interesting to see whether any patents they end up with in Europe do protect anything of monetary worth.

Posted by Giles Parsons
0121 237 4557
gparsons@brownejacobson.com

Publishers welcomed the move but the oncoming election has led to the reforms being derailed. A number of MPs have also openly opposed the reforms because the proposals would not adequately protect the “little guy” who sues the publisher. Does this mean these same MPs disagree with the conclusions and recommendations of the Jackson report? It is only a matter of time before defendants are given greater protection against liability to pay success fees and after-the-event insurance premiums in defamation cases, and publishers will feel that not passing this legislation is an opportunity missed.

Posted by Mark Daniels
0121 237 3993
mdaniels@brownejacobson.com

Fines can only be imposed if a breach is serious and likely to cause substantial damage or distress. Also, only deliberate breaches or breaches where reasonable steps to prevent a foreseeable breach were not taken are covered. 

The example of a ‘serious’ breach given in the Information Commissioner’s guidance is the loss of medical records during a move.

The Information Commissioner has said that he will “not hesitate to use these tough new sanctions for the most serious cases where organisations disregard the law”, and the next company or government department who hit the headlines for losing information should expect to be hit with a punitive fine as well as bad publicity.

Posted by Giles Parsons
0121 237 4557
gparsons@brownejacobson.com

Nominet, which runs the register for .uk domain names, which total around eight million, has announced plans to make available those domain names which comprise two letters or a single character (think AA, BA) as well as other reserved names within the second level domains it controls (including .co.uk and .org.uk). Previously these domains were not available due to technical reasons, unless they had been adopted prior to Nominet’s establishment in 1996.

Nominet estimates that around 2,000 such domains would become available and these would first be offered to relevant trade mark owners during an initial “sunrise” period. Prior to the release, Nominet has invited interested parties to offer their views on the release. A summary of responses received to date are published on Nominet’s website. The responses to date seem to be overwhelmingly in support of the release of two-letter domains, but there has been a more cautious response to the release of single character domains – largely because it is perceived that there is less scope for legitimate use of such domains.

The consultation is open until 8 June 2010, and so if you are a stakeholder – maybe your organisation is well known by a two-letter acronym – you can respond to Nominet here.

The release of these domains is certainly a positive step. However, there have to be the correct safeguards in place to protect the interests of legitimate rights owners, and to avoid abusive registrations. This means that Nominet’s dispute resolution service is likely to see an increase in use once these domains become available.

Posted by Mark Daniels
0121 237 3993
mdaniels@brownejacobson.com

ICANN had previously accepted a request from a domain name registry to be permitted to sell .XXX domain names but subsequently changed its mind after very considerable pressure from a number of conservative groups. Given the very nature of the internet and the fact that it is the most prolific “provider” of adult material surely it is some what bizarre that ICANN should continue to get embroiled in any moral argument or judgement. 

In fact to establish the .XXX domain name may well help those so inclined easily navigate their way to these sites, and equally help parents easily identify adult sites so that they can keep their children away.  However, others argue that it will be seen as legitimising porn sites. The debate will continue but we can expect a decision in June.

Posted by Declan Cushley
0121 237 3991
dcushley@brownejacobson.com