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Journal of Intellectual Property Law & Practice - current issue
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Updated: 40 min 42 sec ago
Infringing British Telecommunications granted disclosure of patentee's licence documents before damages inquiry
Following an earlier finding that British Telecommunications (‘BT’) infringed two patents owned by Adaptive Spectrum and Signal Alignment (‘Adaptive’), Birss J in the High Court (Patents Court) has ordered Adaptive to provide BT with a list of licences and other agreements with Sky (Adaptive's sole UK licensee) in order for BT to understand the likely amount of damages it would have to pay in an inquiry as to damages, even though the inquiry had not yet begun.
The EU General Court provides guidance on own name, unfair advantage and late evidence in trade mark proceedings
Upholding a decision of OHIM's Board of Appeal, the EU General Court has found that Mr Tsujimoto's wish to register his first name, Kenzo, as a Community trade mark (CTM) was ‘without due cause’ and therefore took unfair advantage of the eponymous mark of luxury fashion brand Kenzo within the meaning of Article 8(5) of the Community Trade Mark Regulation 207/2009.
The Advocate General provides guidance on how to assess a likelihood of confusion with regard to acronyms included in descriptive composite trade marks, holding that the guidance of the Court of Justice of the European Union in Medion (C-120/04, EU:C:2005:594) is applicable.
In Ciao Rino the Court of Cassation ruled that a cover band, named ‘Ciao Rino’ after the first name of a famous singer whose songs it performed, did not infringe the trade mark rights in the name of that singer: since the ‘Ciao Rino’ sign only included the first name of the artist, it fell outside the statutory trade mark protection for celebrities' names.
A majority of the Court of Appeal decided that, while online fashion retailer ASOS had infringed the claimant's Community trade mark (CTM) for the word ASSOS (on the grounds of both likelihood of confusion and detriment to distinctive character), its use of its name was in accordance with honest practices in industrial or commercial matters.
The Court of Justice of the European Union (CJEU) has held that the right of making available to the public within Article 3(2) of Directive 2001/29 (the ‘InfoSoc Directive’) does not encompass live TV broadcasts, so that the provision of unauthorized hyperlinks to such works cannot be considered an infringement of copyright under this piece of EU legislation.
A single judge of the Federal Court of Australia has held that no copyright subsists in audiovisual signals transmitted from a live stream of the Olympic Games because there is no embodiment of visual images or sounds in the signal to which copyright can attach.
Birss J issued an order under s 97A of the Copyright, Designs and Patents Act 1988, requiring a number of internet service providers to block access to websites—including Popcorn Time-type websites—hosting unauthorized content to which the claimants own the copyright.
If songwriters were not clear about the difference between taking ‘inspiration’ from another's work, as opposed to actually copying someone else's efforts, they might be even more confused following a federal jury's decision in the ‘Blurred Lines’ case, especially in the modern music era where, in genres such as hip hop and rap, sampling and referencing are commonplace.
The Federal Court of Canada recently issued the first comprehensive review of metatag liability by a Canadian Court, finding the tags in question did not infringe copyright or trade mark law.
Exhaustion, essential subject matter and other CJEU judicial tools to update copyright for an online economy
How far the IP holder's monopoly should extend into secondary and subsequent dealings with a protected work is an old legal chestnut.
Yet this question is at the forefront of a recent spate of judicial activism in the EU and some national courts. The challenge is to update copyright and other IP regimes for an online economy.
Set against a backdrop of imminent EU reform proposals, this article charts the development of exhaustion and other concepts in the English legal tradition, through the changes wrought by EU law, and into the EU court's most recent precedents1 changing the online IP landscape. The authors ask whether judicial activism on this scale is appropriate—upsetting long-held orthodoxies and established offline precedents—or whether it is better left to policy makers to forge an appropriate balance between protection and dissemination through democratic debate.
When a company established in the Netherlands is declared bankrupt, a trustee is appointed whose main task is to settle the bankruptcy in the interest of the company's creditors. Accordingly, the trustee has the power to sell and transfer the intellectual property rights part of the bankrupt's estate for as high a price as possible. It is a common perception that unencumbered property has a greater market value and may be sold at a higher selling price than property which, for example, has been licensed. Hence it is likely the bankruptcy trustee seeks to sell intellectual property rights free from encumbrances.
This practice gives rise to several legal questions, amongst others regarding the (limitations to) the powers of the trustee with regard to the intellectual property rights and the effect of the bankruptcy on the legal position of licensors, licensees and third parties.
In this article, the authors seek to provide some insight and guidance with regard to these legal questions. For this purpose, the article focuses on (the impact of) two judgments of the Dutch Supreme Court in the so-called Nebula and Berzona cases, which are regarded as pivotal in this light.
FRAND in India: The Delhi High Court's emerging jurisprudence on royalties for standard-essential patents
Indian jurisprudence on fair, reasonable, and nondiscriminatory (FRAND) licensing practices for standard-essential patents (SEPs) is at a relatively nascent stage. Unlike US and EU courts, which have dealt with cases concerning calculating a FRAND royalty for a considerable time, Indian courts and the Indian antitrust authority—the Competition Commission of India (CCI)—have only just begun to decide such cases.
In its initial orders in the first two antitrust complaints concerning SEPs, the CCI seemed to favour using the smallest salable patent-practising component (SSPPC) as the royalty base to determine a FRAND royalty. However, in the short time since the CCI's orders, the Delhi High Court has rendered contrary decisions in two SEP infringement suits. The Delhi High Court's decisions use the value of the downstream product as a royalty base and rely on comparable licences to determine a FRAND royalty. The Delhi High Court's decisions are not only consistent with sound economic principles, but also indicate that the court is responding to the judicial and industry trends in the rest of the world.
Because the CCI is still investigating the antitrust complaints with respect to the same SEPs, the CCI could benefit from considering the legal and economic arguments in the Delhi High Court's decisions. It would be counterproductive for the emerging FRAND jurisprudence in India if the judiciary and the competition authority take opposing views toward the rights of SEP holders and SEP implementers.
The extent to which China is an innovative economy is the topic of an on-going debate in scholarly and practitioner circles. The intellectual-property component of China's technological catch-up strategy has been geared towards, first, focusing on quantity of outputs and then eventually shifting towards ensuring the quality of outputs. Disconcertingly, in recent years, this strategy has created negative impacts on patent quality and thus may have hampered innovation in China.
New Chinese intellectual property policies, and the 2014 phenomena of decreasing annual growth rates of domestic invention patent filings and unprecedented negative growth rates of domestic utility model and design filings, shed new light on this debate. They suggest that recent shift away from the government strategy of stimulating mere numbers of any type of patent application may be having a tangible impact.
Even though science and technology development in China will inevitably continue to be a numbers game of sorts, these recent trends may reflect a step towards a healthier Chinese innovation trajectory. Scholars, policymakers and businesses should consider these shifting dynamics in their intellectual property and innovation forecasting, strategizing and planning.
Copyright at the interface between EU law and national law: definition of "work" and "right of communication to the public"
This article is based on a speech delivered on 25 September 2014 at the Annual GRUR Conference within the larger framework of a panel discussing the status of copyright at the interface between requirements of EU law and their national implementation.The panel engaged in a comparison between English and German reception of the latest developments on the EU level. Court of Justice of the European Union (CJEU) judgments on the definition of a work in copyright law and on the right of communication to the public serve to illustrate the fundamental considerations concerning the fully harmonized nature of EU law as well as the breadth of harmonisation and depth of specification in individual cases. Here the actively harmonizing case law of the CJEU generates considerable challenges for individual national copyright systems. Going beyond the individual examples it discusses, this article addresses fundamental implications in detail and the practical consequences of European harmonisation for German law.