Journal of Intellectual Property Law & Practice - current issue

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The bottle is the message: only the distinctive survive as 3D Community trade marks

Mon, 01/19/2015 - 15:23

This article explores the distinctiveness criterion, the absolute refusal ground for the registration of three-dimensional community marks, for bottles.

The office for Harmonisation in the Internal Market (OHIM), the OHIM Boards of Appeal (BoA) and the General Court (GC) insist that three-dimensional community marks are treated as any other mark in the assessment process.

However, statistics demonstrate the opposite, which has arguably led to an underutilization by business of the three-dimensional community mark. Are the criteria applied by OHIM transparent and predictable? Which pattern, if any, can be abstracted from the assessments on distinctiveness of bottles?

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Redefining the jurisdiction clause under copyright and trade mark laws in India

Mon, 01/19/2015 - 15:23

This article comes out of the context of the recent decision of the Supreme Court of India in Paragon Rubber Industries v Pragathi Rubber Mills concerning whether amendment should be allowed in cases of composite suits filed by the plaintiffs by camouflaging the relief of trade mark infringement taking recourse to the jurisdiction clause under the Copyright Act. This peculiar situation arose in the background of the amendment of the Trade Marks Act in 2003. It affects trade mark infringement cases filed under the Trade Marks Act prior to the amendment.

The Indian Copyright Act is a unique piece of legislation giving jurisdiction to the courts at the place where the plaintiff resides. The jurisdiction under the Trade Marks Act of India as amended also falls in line with the Copyright Act. This additional forum, though welcomed by plaintiffs, is an undue burden on the defendant who may be harassed by filing infringement action at the place of the plaintiff's residence. The clauses in the Copyright Act and the Trade Marks Act as amended are in stark contrast to other legislation, as well as to parallel legislation in other countries.

This article is an attempt to redefine jurisdiction so that jurisdiction is vested with the courts at the place where the harm is done, so as not to prejudice either party.

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Community rights and fair benefit sharing: legal instruments and hurdles in implementation

Mon, 01/19/2015 - 15:23

India is a country with huge diversity and an enormous amount of cultural heritage. Against this backdrop, the legislation enacted to comply with treaty obligations seems to be insufficient and ineffective for the protection of traditional and indigenous knowledge.

This article focuses on one aspect of the many hurdles to proper implementation of the law: the enforcement of fair and equitable benefit sharing provisions. One of the main goals of protecting community rights is to make provisions for providing the owners of traditional and indigenous knowledge, which in these cases are communities and not individuals, with the benefit arising from or out of use of such knowledge.

The article examines national and international instruments which deal with access and fair benefit sharing and the deadlock in implementation of this issue. The author provides some suggestions for amending national legislation in order to prevent the statutory provisions from being defeated in reality. These amendments to the existing provisions or the enactment of new provisions are necessary for a country like India, which aspires to an idea of socialism.

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Greek Yoghurt must be Greek

Mon, 01/19/2015 - 15:23

Greek Yoghurt manufacturer's injunction is upheld by UK Supreme Court, preventing a US competitor from selling in the UK "Greek Yoghurt" made in the USA. UK national law can protect the public when registration of a geographical designation is not possible.

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Confusion surveys and confused judges

Mon, 01/19/2015 - 15:23
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A nod to appropriating deity

Mon, 01/19/2015 - 15:23

The High Court of Kerala upheld the decision of the Trade Marks Registry granting registration to the Attukal Bhagavathy Trust for the picture of the deity and the appellation Sabarimala of Women.

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Non-use excluded from the grounds of invalidity

Mon, 01/19/2015 - 15:23

Non-use has been excluded from the grounds of invalidity following a decision of the Turkish Constitutional Court on the ground that its retroactive effect violated ‘property right’ guaranteed by the Turkish Constitution.

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'Redskins' marks cancelled: offensive to Native Americans

Mon, 01/19/2015 - 15:23

The US Patent & Trademark Office's Trademark Trial and Appeal Board (TTAB) cancelled six registrations of trade marks incorporating the word ‘Redskins’, used by the Washington Redskins football team. While the team is not barred from using the marks, it will be denied legal recourse under trade mark law in cases of infringement, depriving the marks of much of their commercial value.

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CJEU says that Member States may grant public libraries the right to digitize works in their collections

Mon, 01/19/2015 - 15:23

In this decision, the Court of Justice of the European Union (CJEU) ruled that Article 5(3)(n) of Directive 2001/29 (the ‘InfoSoc Directive’), read in conjunction with Article 5(2)(c) of the same directive, must be interpreted as allowing Member States to grant publicly accessible libraries the right—under certain conditions—to digitize the works contained in their collections.

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Dutch copyright succumbs to aging as exhaustion extends to e-books

Mon, 01/19/2015 - 15:23

The District Court of Amsterdam recently concluded that, from now on, ebooks are equivalent to paper books, thus becoming susceptible to resale under the exhaustion principle by application of the UsedSoft decision (C-128/11) of the Court of Justice of the European Union.

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Blowing the whistle on copyright in public sculptures

Mon, 01/19/2015 - 15:23

Controversy surrounding two recent Fédération Internationale de Football Association (FIFA) Football World Cup-related advertisements featuring images of a statue of Christ the Redeemer serve as a reminder that sculptures in public places can be protected by copyright.

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Indigenous and traditional communities must be consulted before approval of intellectual property treaties

Mon, 01/19/2015 - 15:23

The Colombian Constitutional Court held that Law 1518 of 2012, which integrates into national legislation the International Convention for the Protection of New Varieties of Plants (UPOV Convention 1991), is unconstitutional because the government failed to consult indigenous and Afro-Colombian communities.

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India's first spare parts case: the intellectual property defence in Indian antitrust law

Mon, 01/19/2015 - 15:23

The Competition Commission of India adopts the essential facilities doctrine in ‘refusal to deal’ cases, denies competence to question the validity of an intellectual property right and explains the scope of the statutory exemption for holders of intellectual property rights to enter into anti-competitive agreements.

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Taiwan IP Court asked to designate how TIPO assists litigants

Mon, 01/19/2015 - 15:23

The Taiwan Supreme Court set aside the country's Intellectual Property Court's judgment for its failure to specify which party the Taiwan Intellectual Property Office (TIPO) should assist or to ask the TIPO to express which party it would like to assist.

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Failure to show breach of implied licence and secondary passing-off of airline goods by advertising agency

Mon, 01/19/2015 - 15:23

The Intellectual Property Enterprise Court (IPEC) rejected Orvec's claims against Linfoots, an advertising agency, for (i) breach of an implied copyright licence for photographs of products supplied to airlines by Orvec and (ii) secondary passing-off of the products.

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Patentability of methods of human enhancement

Mon, 01/19/2015 - 15:23

This article explores how to apply patentability rules to human enhancement, particularly focusing on Article 53(c) of the European Patent Convention (EPC).

The global size and value of the cosmetic and wellness market and industry allow for the prediction of considerable market potential for human enhancement. Patents will be instrumental for companies to protect investment in innovation and tap into this potentially valuable market.

The European patent system contains, in Article 53(c) EPC, an exception from patentability for methods for treatment and diagnostic methods. Such rule was created, and subsequently developed through European Patent Office (EPO) case law, by reference to the dichotomy between therapeutic and cosmetic methods. Subsuming enhancement methods under this patentability rule may be challenging. Ultimately, patentability of human enhancement will depend on the concept of health, its future evolution and the corresponding public policy choices. This article seeks to provide prospective patentees with guidance and awareness concerning the patentability of methods for human enhancement.

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Brandalism and subvertising: hoisting brands with their own petard?

Mon, 01/19/2015 - 15:23

Brandalism is a movement with the stated aim of rebelling ‘against the visual assault of media giants and advertising moguls who have a stranglehold over messages and meaning in our public spaces’. Through public acts of ‘subvertising’, where through spoofs, parodies and other message-changing/obscuring alterations, activists seek to use a brand's own marketing channels to make a statement against the brand itself. Subvertising typically involves artwork commenting on consumerism, cultural values, debt, the environment, body image or specific political messages placed over existing billboards at bus stops and other public spaces.

The article will identify the recent rise of brandalism, referring to examples from spring/summer 2014. It will also analyse the movement and its possible impact against the backdrop of on-going discussions relating to the appropriate balance between, on the one hand, brand owners' intellectual property rights and protections against defamation, and, on the other, the free expression rights of individuals and other groups.

The article will draw on cases where courts in Europe have considered such issues and ruled where the balance between these conflicting sets of rights should lie. In considering how brandowners might respond to such brandalism campaigns, the article will consider: the extent to which intellectual property rights can be said to be infringed by such activity; the impact of parody defences in Europe and the parameters of fair dealing; the practical/commercial factors to be borne in mind; the relevance (and threats) of social media and viral memes; and the role (if any) of criminal enforcement.

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