Journal of Intellectual Property Law & Practice - current issue

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Novelty does not necessarily mirror infringement: product-by-process claims

Sat, 05/02/2015 - 01:23

Mr Justice Birss expounds, interprets and applies the law on construction, novelty and infringement of patent claims that have a ‘product-by-process’ feature.

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Claim construction is ultimately a question of law but may involve underlying factual questions

Sat, 05/02/2015 - 01:23

The US Supreme Court reversed a previous determination by the US Court of Appeals for the Federal Circuit, holding that, while the construction of patent claims is a question of law for a judge to determine, claim construction may involve underlying factual disputes that are subject to clear error, rather than de novo review.

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The new MALIBU bottle: a borderline case of inherent distinctiveness

Sat, 05/02/2015 - 01:23

OHIM's Second Board of Appeal has found that OHIM's examination division was wrong to reject a Community trade mark (CTM) application for the shape of the new MALIBU bottle, finding that it had acquired distinctiveness through use, though considering this a ‘borderline case’ in relation to inherent distinctiveness.

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Brussels Court of Appeal says Louboutin's red sole trade mark is valid and infringed

Sat, 05/02/2015 - 01:23

The Brussels Court of Appeal reversed the judgment of the President of the Brussels Commercial Court that had declared Christian Louboutin's red sole trade mark invalid. A summary of the earlier judgment can be found in the Current Intelligence note published in Journal of Intellectual Property Law & Practice (2014)9(9): 705-706 doi:10.1093/jiplp/jpu106.

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Descriptive marks and the importance of counterclaims

Sat, 05/02/2015 - 01:23

The Federal Court of Canada recently granted default judgment in a trade mark infringement case, in respect of a mark which appeared utterly descriptive.

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LINGAYEN mark descriptive, says Federal Court of Canada

Sat, 05/02/2015 - 01:23

In a summary trial for trade mark infringement, the Federal Court of Canada ruled that the plaintiff's mark LINGAYEN was descriptive of the goods' place of origin and therefore invalid.

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Trade mark tacking a factual question for the jury

Sat, 05/02/2015 - 01:23

The US Supreme Court confirms that trade mark tacking is a question of fact to be resolved by the fact-finder (typically the jury) rather than a question of law to be resolved by the court.

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Duke v Duke: the intersection of trade mark law and publicity rights in the United States

Sat, 05/02/2015 - 01:23

This is a case in the United States District Court of California where John Wayne Enterprises was unable to trounce Duke University due to the Courts lack of jurisdiction. This note explores the paradox of publicity rights in the US and personality rights (as it is termed) in Europe. This case is about the use in common of the ‘Duke’ trade mark which has continued for many years by both Duke University as well as John Wayne Enterprises (the estate which commercially exploits John Wayne's publicity rights).

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CJEU says that copyright exhaustion only applies to the tangible support of a work

Sat, 05/02/2015 - 01:23

The Court of Justice of the European Union (CJEU) held that the right of distribution within Article 4 of Directive 2001/29 (the ‘InfoSoc Directive’) can only be exhausted in relation to the tangible support of a work.

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Expropriation of copyright: an ill-thought-out strategy for cultural heritage policy

Sat, 05/02/2015 - 01:23

The Colombian Constitutional Court held that expropriation of copyright in the music of Master Leandro Díaz, a contemporary minstrel of traditional Vallenato, is unconstitutional because the designation of his music as national cultural heritage is an insufficient justification for the deprivation of intellectual property rights.

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Mounting blocks: internet service providers ordered to block 21 copyright infringing music-sharing websites

Sat, 05/02/2015 - 01:23

Mr Justice Arnold has ordered five internet service providers to block access to 21 copyright infringing music file-sharing websites under section 97A of the Copyright, Designs and Patents Act 1988, the most extensive website blocking order ever made in the UK.

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Indian copyright law and anti-circumvention provisions: can a please-all regime meet the global yardsticks?

Sat, 05/02/2015 - 01:23

Indian Copyright law, which has been in existence for more than 165 years, is on the verge of a major transformation triggered by rapid advancements in technology. In 2012, the law was amended to incorporate the Technology Protection Measures (TPMs) mandated by the World Intellectual Property Organization (WIPO) Copyright Treaty.

This article examines in detail various provisions of the amendments on TPMs in the light of the WIPO Treaty, Digital Millennium Copyright Act provisions and the EU Copyright Directive. It explains the rationale behind the unique provisions under the amendment, the various internal and external factors which influenced the Indian policy makers, compatibility of the Indian provisions with global practices and the approach of the judiciary, which is going to play a crucial role in cases involving protection of TPMs.

The article seeks to highlight the manner in which Indian policy makers have tried to use the flexibilities available to draft legislation which has the potential of protecting the public interest without compromising the rights available to the copyright owner.

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Can the playing of music at work be considered a public performance? The Importance of Reading Ernest (Turner)

Sat, 05/02/2015 - 01:23

This article addresses the playing of music from the radio, and in particular from commercial radio stations, in a working environment. Many businesses inadvertently infringe rights by the seemingly innocuous act of playing the radio to, or even merely allowing the radio to be played by, their employees without a licence permitting a public performance.

The article presents the view that there is the potential for a challenge to the presumption that playing of music to an industrial workforce constitutes a public performance.

The legal authority for this dates from Turner and Gillette in 1943, since when the world of broadcasting and listening to music has changed beyond recognition. Radio sets at that time were the subject of individual licences, whereas now much music that is played in workplaces is carried on commercial radio stations funded by advertising and sponsorship revenue, which in turn is reliant on the listening habits of their audiences. The principal licensing bodies base their royalty rates on commercial stations' revenue, irrespective of where the audience listen and consequently they receive revenue from advertising consumed by at-work listening. This distinguishes the position from Turner and Gillette which was predicated on the failure of the then current circumstances to reward the copyright owner for use of his work. Applying the logic from this leading case would suggest that playing commercial radio should no longer be considered a public performance. A revision in case law to this effect would be consistent with emerging European law on this topic.

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Alice and software patents: implications for India

Sat, 05/02/2015 - 01:23

The decision of the US Supreme Court in Alice Corporation v CLS Bank International 573 US __ (2014) has significantly affected attitudes to software patenting worldwide.

This decision has not only forced the United States Patent and Trademark Office to re-examine the requirement of separate guidelines but has also made other countries rethink their policy of patenting computer-related inventions.

This article analyses the impact of Alice and discusses the issue of software patenting in India through the case law, concluding that it is necessary to better define and delineate the ambit of software patenting in order to bridge the gap between law and technology.

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Remix prohibited: how rigid EU copyright laws inhibit creativity

Sat, 05/02/2015 - 01:23

With the emergence of the digital environment, the issue of ‘transformative uses’ in copyright law has gained renewed interest in legal literature.

While many authors have emphasized the challenge that these transformative practices presented for copyright law, there has been a clear lack of comprehensive study of the extent of copyright law's hostility to such practices, in particular the non digital ones. In addition, too little attention has been paid to possible solutions to resolve this conflict within the copyright regime.

This is the first of two papers that seek to fill these two gaps. In this first paper we will provide a comprehensive assessment of the status of transformative uses in EU, Belgian and French law, informed by a vast body of case law. In the second paper, we will discuss potential solutions drawing inspiration from Canadian copyright law, which has recently experienced both the introduction of a legal exception for user generated content, and a court-led shift from a traditional closed-list fair dealing system to a broader, semi-open system of exceptions and limitations.

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The Semiconductor Integrated Circuit Layout Design Act 2000 in India and the mischief of freedom of infringement

Sat, 05/02/2015 - 01:23

The Semiconductor Integrated Circuit Layout Design Act 2000 (SICLDA) in India was passed in compliance with the Trade-related Aspects of Intellectual Property Rights Agreement. A perusal of this legislation raises questions as to the haste with which it might have been drafted and passed by the legislature in India.

The legislation draws provisions from the Patent Act 1970, the Copyright Act 1957 and the Trade Mark Act 1999. This Cinderella of intellectual property law has failed to draw academic debate on its provisions, possibly because, though the SICLDA was passed in 2000, it was only in 2011 that its major provisions came into force and, before it did so, it remained in obscurity.

The author of this article has endeavoured to highlight a substantial error in the SICLDA which makes freedom of infringement under the Act susceptible to mistreatment and unconstitutional.

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Boundaries of use of electronic terminals

Sat, 05/02/2015 - 01:23
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Bringing patent trolls into the spotlight

Sat, 05/02/2015 - 01:23
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