Posts Tagged ‘Intellectual Property’
Friday, October 29th, 2010
JK Rowling and her publisher Bloomsbury have failed to get summary judgment against the estate of Adrian Jacobs who is claiming that the Harry Potter novels infringe copyright in Jacobs’ Willy the Wizard novels by copying that book’s plot and themes.
Rowling and Bloomsbury claimed that Jacobs’ claim should be dismissed summarily, as (a) Rowling had not read Willy the Wizard, and (b) the plot and themes she had allegedly copied were too abstract to be protected by copyright.
The allegations of copying were complex, and the defendants had not disclosed Rowling’s drafts or of her agent’s diaries. Similarly, the judge strongly inclined to the view that no copyright subsisted in the plot and themes, but on neither point was the case clear enough to be suitable for summary judgment.
The matter may roll on to court – but with three firms of solicitors and six barristers involved, the loser could face a very large bill, and hopefully common sense will allow the matter to settle.
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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Rating: 7.0/10 (3 votes cast)
Tags: Bloomsbury, copyright, Harry Potter, Intellectual Property, JK Rowling, Wizard Willy
Posted in Intellectual Property | 1 Comment »
Wednesday, October 27th, 2010
The Olympics, Paralympics and London Olympics Association Act 2006 introduced draconian powers that will have serious implications for UK companies that wish to take advantage of the London Games.
The act created the ‘London Olympic Association Right’ which gave the London Organising Committee (LOCOG) substantial powers to prevent unauthorised association between a business’ goods or services and the London 2012 Olympic Games.
The Government has now introduced further Regulations The Olympics, Paralympics and London Olympics Association Rights (Infringement Proceedings) Regulations 2010 (SI 2010/2477) which come into force on 8 November 2010 and give the High Court the power to order the erasure, removal, obliteration or destruction of any offending representations. LOCOG may apply to the court for the delivery up of infringing goods or articles, which may then be destroyed.
The Regulations illustrate what a huge battleground the London 2012 Olympics will become and companies will need to understand the parameters clearly before embarking upon related advertising campaigns.
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
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Tags: Intellectual Property, LOCOG, London Games, Olympic Games
Posted in Intellectual Property | No Comments »
Wednesday, October 20th, 2010
The Chancellor of the Exchequer has announced that the Department of Business, Innovation and Skills will have its administration budget cut by 25 per cent.
In view of the Government’s desire to promote science and innovation at both the corporate and personal level it is crucial that these cost savings do not inhibit intellectual property development.
Costs and time involved in securing protection can still inhibit invention and innovation especially for smaller companies and the taxation of IP and R&D should allow for the time and costs taken to create new IP.
There should also be greater investment in the education of small business about how to identify, protect and exploit the intellectual property which the Government is encouraging.
The UK IPO which is part of the BIS should be properly funded and new ways of expediting applications for registration of rights both in the UK and Europe should be explored.
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: comprehensive spending review, Intellectual Property, Public Sector
Posted in Comprehensive Spending Review, Intellectual Property | No Comments »
Thursday, October 14th, 2010
Nominet has ordered the transfer of the domain name ihateryanair.co.uk from Robert Tyler to Ryanair.
Robert Tyler registered the domain name and used it for his anti-Ryanair website, which was devoted to criticism of the airline.
Nominet ordered the transfer not because the domain name pointed to a protest site, but because Mr Tyler derived advertising revenue from that site totalling £322 – hardly a fortune.
But maybe Mr Tyler has had the last laugh – he has moved his website to here and has removed the commercial advertisements. Interestingly, at the time of this posting, the domain name ihateryanair.co.uk still points to Mr Tyler’s website.
Conversely a victory for free speech then! Brand owners should beware of the limitations of the Nominet dispute resolution process in relation to criticism websites. If you are looking to manage online content about your brand consider also whether the content is defamatory, or whether your trade mark has been infringed.
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: domain name, Intellectual Property, Nominet, Robert Tyler, Ryanair
Posted in Intellectual Property | 2 Comments »
Friday, October 8th, 2010
“The inventor protected anywhere and everywhere in the same way. What a beautiful dream!” – so said a lawyer of the late 19th Century.
Notwithstanding countless international treaties on trade since that time, and the recognition of IP rights across jurisdictions and at both a national and international level, we are still far from international harmonisation of law and procedure. The Anti-Counterfeiting Trade Agreement (ACTA), published in April this year, is the latest attempt. ACTA is a proposed international agreement whose purpose would be to establish international standards on intellectual property protection. ACTA is another attempt by governments to negotiate a common international standard on how countries should act against large scale infringements of IP rights.
ACTA is being negotiated by 10 developed countries and the European Union. It is moving slowly to a consensus. As it does, however, criticism is mounting that the final agreement will amount to an infringement of human rights, thereby restricting the right of an individual to buy something which he knows is not an original. As a senior judge recently stated, the consumer is not stupid. So, given that ACTA is negotiated by governments, far removed from ordinary people, has the individual lost out?
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: acta, anti counterfeiting trade agreement, counterfeit goods, Intellectual Property, ip
Posted in Intellectual Property | No Comments »
Wednesday, October 6th, 2010
Following the highly publicised spat between the BBC and Ben Collins, aka The Stig from BBC’s Top Gear Programme, it now appears that Mr Collins is racing over to present Channel 5’s rival motor show Fifth Gear.
The BBC will no doubt claim to have image rights in The Stig. However those image rights will be limited. Indeed, there are no such things as image rights per se under UK law. The BBC would need to specifically identify any IP rights it claims to have in The Stig; including design rights, copyright, trade marks or rights in passing off.
Any programme with Collins in a racing outfit that doesn’t confuse the watcher, which uses the name The Stig carefully, or uses clothing that is dissimilar to The Stig’s famous white outfit, is ultimately unlikely to put Channel 5 the wrong side of the line.
No doubt both channels will already be considering the legal issues.
Holly Mitchell
0115 908 4886
hmitchell@brownejacobson.com
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Tags: BBC, Ben Collins, Image Rights, Intellectual Property, The Stig
Posted in Intellectual Property | 1 Comment »
Friday, October 1st, 2010
ACS Law is known for its pursuit of alleged illegal file-sharers by identifying ‘offending’ IP addresses, then forcing ISPs to disclose details of their corresponding subscribers, before demanding compensation for copyright breaches.
This week, ACS suffered an attack on its website, designed to make the site unavailable. During efforts to bring it back online, various documents became publicly accessible, including unencrypted users’ details…with a range of consequences for ACS (and BT).
One issue here is whether ‘Norwich Pharmacal Orders’, typically used to compel ISPs to disclose information, are too freely granted. Amongst other criteria, the applicant has to show that the data requested is relevant to a possible claim, and disclosure is in the interests of justice. The chances of refusal may have been higher if the ISPs had defended ACS’ application, for evidential and confidentiality reasons, rather than taking the usual ‘don’t agree but don’t oppose’ stance!
Laura Phillips
0115 976 6182
lphillips@brownejacobson.com
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Tags: copyright, copyright breaches, Intellectual Property
Posted in Intellectual Property | 1 Comment »
Wednesday, September 15th, 2010
The European Court of Justice has ruled that the Lego brick cannot be registered as a trade mark because its shape is necessary to obtain a technical function, ie to enable another Lego brick to be attached to it. The court found that the exclusion applies even where, within the shape, there are other non-essential characteristics with no technical function.
So where does that leave products whose shapes are dictated by technical functions? Design protection may be available for some features of shapes, but again there is an exclusion applying to features of a design which are solely dictated by technical function, so community registered and unregistered design rights may be of little assistance. If the product is novel and inventive, it may qualify for patent protection.
The ECJ gives little guidance as to when any non-technical features are sufficiently relevant so as to bring the shape within trade mark protection. Those seeking such protection will have to place a great emphasis on any non-technical features, to get over the hurdle of registrability – something which the Lego brick failed to do.
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: design protection, Intellectual Property, ip, patent protection, Trade Mark, trade marks
Posted in Intellectual Property | 1 Comment »
Wednesday, September 15th, 2010
Do we make assumptions about the origin of goods on the basis of a single letter?
The Office of Harmonization for the Internal Market (OHIM) says not – an application for a community trade mark by Borco to register the Greek letter alpha – α – for wines was held to lack distinctive character, being a simple reproduction of the letter and also a mark that Greek consumers would not see as an indicator of origin.
Advocate General Bot thinks otherwise and contends the OHIM’s practice of automatically rejecting applications to register single letters as trademarks without a full assessment is wrong.
This decision follows swiftly on from recent decisions on colour marks and confirms that all marks must be examined on their capability of distinguishing their particular goods from those of others.
It is hard to see how the ECJ could fail to follow the Advocate General’s opinion. Clearly there are no short cuts to examining distinctiveness no matter how short the mark!
Posted by Paula Dumbill, who specialises in non-contentious intellectual property, particularly trade marks and copyright, advising in particular on IP exploitation and collaboration agreements and trade mark portfolio management.
Paula Dumbill
0115 976 6059
pdumbill@brownejacobson.com
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Tags: distinctive character, Intellectual Property, ip, Trade Mark, trade marks
Posted in Intellectual Property | No Comments »
Friday, September 10th, 2010
Google have agreed to pay $8.5 million to settle a class action brought by a group of customers using Gmail accounts (Google’s email service).
Google signed up its Gmail users to BUZZ, their new social networking application, without their prior consent. The BUZZ application created the user’s network on the basis of their email contacts but Gmail users objected saying that this violated their privacy, as Google’s activities resulted in Gmail users contact details being shared with others against their wishes.
With a proportion of the settlement payment going to organisations educating and promoting online privacy, this case illustrates the importance of online privacy and the need to get users consent to the receipt of services via opt in/opt out controls prior to launch. Having seen Google stung for $8.5 million in this case, hopefully others will not be inclined to indulge in similar ‘anti-social’ networking.
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
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Tags: buzz, gmail, Google, Intellectual Property, internet, privacy
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Thursday, September 9th, 2010
The High Court has dismissed a claim by Dyson Ltd against rival Vax Ltd for infringement of Dyson’s registered design for a cyclonic vacuum cleaner. The claim concerned Vax’s Mach Zen model which Dyson claimed infringed their registered design dating back to 1994.
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
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Tags: Dyson Ltd, Intellectual Property, Patents, Vax Ltd
Posted in Intellectual Property, Manufacturing | No Comments »
Friday, September 3rd, 2010
In last week’s Legal Opinion, Stig facing the dump, Browne Jacobson reported the initiation of legal proceedings by the BBC who were seeking to restrain the publication of Ben Collins’ autobiography, The Man in the White Suit, which identified Mr Collins as Top Gear’s enigmatic celebrity driver The Stig.
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
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Tags: BBC, Ben Collins, Intellectual Property, The Stig, Top Gear
Posted in Intellectual Property | 1 Comment »
Friday, August 27th, 2010
Oracle (formally Sun Microsystems) brought infringement proceedings against M-Tech for importing disk drives (bearing the SUN trade marks) without its consent into the European Economic Area (EEA) that had been first marketed outside the EEA. Under European trade mark law, putting goods on the market in the EEA without the trade mark owner’s consent amounts to trade mark infringement.
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
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Tags: competition law, grey goods, Intellectual Property, parallel imports, trade marks
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Friday, August 27th, 2010
The BBC has reportedly started legal proceedings against HarperCollins for seeking to publish an autobiography of Ben Collins, a former racing driver, in which Mr Collins alleges that he is The Stig, the helmeted driver of BBC’s Top Gear. The BBC alleges that the threatened disclosure “breaches agreed contractual and confidentiality obligations”.
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
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Tags: BBC, Ben Collins, Intellectual Property, The Stig
Posted in Intellectual Property | 1 Comment »
Friday, August 20th, 2010
When establishing the meaning of words that are claimed to be defamatory, one must look at the context in which they appear.
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
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Tags: Intellectual Property, IslamExpo, media
Posted in Intellectual Property | No Comments »
Tuesday, August 10th, 2010
The scope of copyright protection for computer programs has come under scrutiny once again. The view of the English Courts has been that copying the functionality of a program which does not involve the copying of source code or graphics does not amount to infringement of the copyright in the program. In SAS Institute v World Programming Limited, the Judge’s preliminary ruling followed the previous court decisions but he acknowledged that guidance on a number of aspects of this area of law was required from the ECJ. It will be interesting to see if the ECJ upholds the approach taken by the English courts: if it does, then claims will have to be based on the copying of other elements of computer programs such as screen displays. Whilst this approach may be difficult for software owners to accept from an ownership perspective, it does provide the freedom to develop competing software so long as the source code and graphics are not copied.
Posted by Sara McNeill
0121 237 3930
smcneill@brownejacobson.com
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Tags: copyright, Intellectual Property, Software
Posted in Intellectual Property | 1 Comment »
Wednesday, August 4th, 2010
Nintendo has scored a major victory against computer games pirates in a recent High Court case which found that “modchips” are illegal. The modchips in question fit into the cartridge slot of the Nintendo DS console and, by bypassing the console’s security systems, enabled gamers to play pirated games downloaded from the internet.
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
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Tags: Computer Games, Intellectual Property, Nintendo, Piracy
Posted in Intellectual Property | No Comments »
Thursday, July 29th, 2010
Wayne Rooney has won a case against his former management company, Proactive Sports Management Ltd. The case concerned an agreement which gave Proactive an eight-year monopoly over the exploitation of Wayne Rooney’s image rights.
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
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Tags: Image Rights, Intellectual Property, Sport, Wayne Rooney
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Friday, July 9th, 2010
Ireland’s Department of Enterprise, Trade and Innovation has published the conclusions from its enquiry into whether the Irish Patent Office should continue to examine trade mark applications to see whether there are relative grounds for refusing the registration. A trade mark may be refused on relative grounds if it is identical or similar to an earlier trade mark. All applications are also examined to see whether the mark should be rejected on absolute grounds – i.e. because there is something inherently wrong with the mark, for example if it is not distinctive.
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
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Tags: Intellectual Property, Patents, Trade Mark
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