Archive for January, 2009

Not using a trade mark

Friday, January 30th, 2009

An Austrian company, Maselli, sells clothing under its brand WELLNESS.  It has the trade mark registered for clothing in class 25 and also in classes 16 (for printed matter) and class 32 (for alcohol free drinks).  It gave away bottles of a non-alcoholic drink bearing the WELLNESS brand, but never sold the drinks independently of the clothing.

On application by Silberquelle, a producer of alcohol free drinks,  the ECJ has ruled that affixing the mark to goods, which are given away free of charge to purchasers of other goods, is not genuine use of the trade mark for the free goods in the EU.

That is, it should follow that Maselli’s mark will be revoked.

Here, of course, there has to be use as a trade mark and the use (as a trade mark) has to be in good faith see s. 92 and Gallo v Lion Nathan

As the IPKat asks, what happens to a newspaper’s trade mark where the newspaper is given away free?

Ever since the old Irish case about “Golden Pages” TM, where a classified directory was given away for free, but contained paid advertising, we have thought the trade mark was being used in the course of trade (or in more modern parlance, in good faith as a trade mark).  Wonder if that’s still the case?

C-495/07 Silberquelle GmbH v Maselli-Strickmode GmbH

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IPRIA, ISPs and (Copryight) authorisation

Thursday, January 29th, 2009

IPRIA is hosting a free seminar on ISPs liability for authorising copyright infringement.

Impressive range of panellists. Possibly the only hotter topic in copyright is what is a reproduction of a substantial part. Score a CPD point!

5 February 2009 at 5.30 for 6.00pm.

Details via here.

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The USA, China and the WTO dispute

Wednesday, January 28th, 2009

The dispute resolution panel’s decision in the USA’s complaint against China’s rules on enforcement, “Measures affecting the protection and enforcement of intellectual property rights” (DS362) (background here) has been published.

There’s a range of commentary around the web.  The  IPKat reproduces the conclusions and, applying sophistaKatted Euro reading between the lines, scores it at 3-all.

Intellectual Property Watch’s summary here.  According to the USTR, the US won.

Not sure what has happened to the “market access” dispute?

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Spam Act fine

Monday, January 26th, 2009

Optus has been fined AUD$110,000 under the Spam Act 2003 for sending out 20,000 electronic messages without adequate sender identification.

Peter Black carries the report.

On a different note: why doesn’t Australia have laws against junk faxes?

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3 strikes – across the Tasman

Friday, January 23rd, 2009

Apparently, New Zealand’s copyright law has been amended to require ISPs to terminate the account of a “repeat infringer”.

Excess Copyright has the links.

Our law – Copyright Act s 116AG – already provides that a Court may order the “carriage service provider” to terminate a specified account.

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Patent destruction policy

Friday, January 23rd, 2009

In Australia (since the famous McCabe v BAT case (overturned on appeal), of course, we know them as “document retention” policies.

In the US, a Federal District Court judge has ruled that Rambus cannot enforce a patent relating to DRAM technology as a result of its policy, implemented in 1998, of destroying documents where the court held Rambus should have known litigation was likely.

A different judge, in the District of Northern California, apparently took the opposite view.

An appeal has been foreshadowed.

Read further here.

Lid dip: Peter Clarke.

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Microsoft, the EU, Internet Explorer and tying again

Thursday, January 22nd, 2009

On 15 January 2009, the European Commission commenced new proceedings against Microsoft alleging that Microsoft was abusing its dominant position in the market by tying Internet Explorer to the Windows operating system:

According to the Commission:

The evidence gathered during the investigation leads the Commission to believe that the tying of Internet Explorer with Windows, which makes Internet Explorer available on 90% of the world’s PCs, distorts competition on the merits between competing web browsers insofar as it provides Internet Explorer with an artificial distribution advantage which other web browsers are unable to match. The Commission is concerned that through the tying, Microsoft shields Internet Explorer from head to head competition with other browsers which is detrimental to the pace of product innovation and to the quality of products which consumers ultimately obtain. In addition, the Commission is concerned that the ubiquity of Internet Explorer creates artificial incentives for content providers and software developers to design websites or software primarily for Internet Explorer which ultimately risks undermining competition and innovation in the provision of services to consumers.

Apparently, Microsoft has 8 weeks to reply.

Microsoft’s initial press release notes that the Statement of Objections served by the Commission specifically states that the US settlement with the DOJ in 2002 (Wikipedia here) does not make the inclusion of Internet Explorer in Windows lawful under EU law.  Other than that it is fairly bland, as you would expect, stating that “We are committed to conducting our business in full compliance with European law.”

Read the Commission’s Press Release. Read Microsoft’s here or here.

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Patent case management

Wednesday, January 21st, 2009

In the USA, Professor Peter Menell and others are preparing a comprehensive case management guide for patent litigation for the Federal judiciary.

The “almost final” 500 page draft can be found here.

Lid dip: Patently-O

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Digital Economy – Future Directions consultation

Wednesday, January 21st, 2009

The convolutedly named The Department of Broadband, Communications and the Digital Economy has issued a consultation paper for industry on the Digital Economy Future Directions.

Apparently, the consultation draft arises from workshops held in August and September 2008.

There is considerable useful detail about the state and composition of the digital economy in Australia and questions on a range of important issues are posed.  In connection with the regulatory framework issues, the following questions are raised:

Should the existing copyright safe harbour scheme for carriage service providers be broadened?  

Does Australia’s copyright law unreasonably inhibit the operation of basic and important internet services? If so, what are the nature of such problems and practical consequences?  How should these be overcome? 

Is there non-copyright legislation that is directly relevant to digital economy businesses that create uncertainty or barriers? 

One might have thought, at a minimum, that the scope of the so-called copyright ‘safe harbors’ should be expanded from the indecipherable ‘carriage service providers’ at least to the extent of ‘service providers’ permitted under the Free Trade Agreement (see art. 17.11.29).  One might also speculate that it would be preferable to adopt a global framework for such service provider liability rather than adopting inconsistent and contradictory regimes for different subject matter such as copyright and defamation etc.

The paper specifically excludes from its scope questions about the National Broadband Network.

The consultation paper is available in pdf or Word format via here.

Better hurry, you have until 11 February 2009 to get your pearls in.

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PCT survey

Wednesday, January 21st, 2009

IP Australia calls on all Australian users of the PCT to complete WIPO’s online survey:

Australian users of the Patent Cooperation Treaty (PCT) can make their views known by participating in a survey being run by the World Intellectual Property Organization (WIPO), the body that administers the PCT. The comprehensive survey covers all aspects of the PCT from electronic filing to search and examination.

Follow the links from here.

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