Marty (The Trademark Blog) extracts from the 11th Circuit’s ruling in Davidoff v CVS, where the parallel importer was found liable for infringement by removing the UPC codes (which, of course, are not put there to detect parallel import leaks, but in case of product recall requirements).
He appends the text of the decision.
Off the top of my head, I don’t think that argument would help Davidoff down here as s 123 operates on consent in respect of ‘similar goods’. The 1994 Act, which never came into force and was repealed by the 1995 Act did make an attempt to deal with quality issues in s , but that ultimately fell be the wayside.
What chance of arguing misleading or deceptive conduct under s 52?
A committee comprised of judges and attorneys has published the National Patent Jury Instructions.
As its name suggests, a set of model instructions for juries in the USA for patent actions.
Apart from when your client might be litigating in lawyer paradise, you never know, you might find some useful ideas – bearing in mind that their law and our law are not exactly the same!
Download from here. Lid dip Patently-O.
Francis Gurry, the newly appointed Director General of WIPO will be speaking in Melbourne on 3 August 2009:
Intellectual Property, Innovation and Creativity – Future Global Directions
Registration is free, but bookings essential.
More details here (pdf).
Felix Oberholzer-Gee at Harvard and Koleman Strauss at Uni. of Kansas take an empirical look at the effect of file sharing on copyright industries.
They accept that file sharing has weakened copyright protection (although they are quite sceptical about the studies trying to prove this). They argue this is only part of the question, however, for policy-makers. They contend that, if the role of copyright is to provide incentives to create new works, it is necessary to look rather more widely.
For example, they note:
- the publishing of new books increased by 66%
- the number of new albums released more than doubled;
- the number of feature films produced has increased by 30%,
in the early years of the 21st century.
They also note that revenues from concert sales and merchandising and the like has also increased.
Exploring this, their tentative conclusion for policymakers:
The role of complements makes it necessary to adopt a broad view of markets when considering the impact of file sharing on the creative industries. Unfortunately, the popular press – and a good number of policy experts – often evaluate file sharing looking at a single product market. Analyzing trends in CD sales, for example, they conclude that piracy has wrecked havoc on the music business. This view confuses value creation and value capture. Record companies may find it more difficult to profitably sell CDs, but the broader industry is in a far better position. In fact, it is easy to make an argument that the business has grown considerably.
Download the pdf here.
Lid dip Joshua Gans
The ALRC has released a discussion paper outlining 65 proposals:
“to balance a growing commitment to increased openness and transparency in government with the legitimate need to maintain the secrecy and confidentiality of some Commonwealth information.”
Submissions should be made by a leisurely 7 August 2009.
According to the Media Briefing:
The chapters fall into four broad areas:
- concepts and comparisons;
- a general criminal secrecy offence;
- specific secrecy offences; and
- administrative duties, practices and procedures.
and the centre piece would be:
the ALRC proposes that the new general secrecy offence should only impose criminal liability where a particular disclosure did, was reasonably likely to, or was intended to:
- harm the national security, defence or international relations of the Commonwealth;
- prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction, the enforcement of laws relating to the confiscation of the proceeds of crime, or the protection of the public revenue;
- endanger the life or physical safety of any person;
- pose a serious threat to public health or public safety;
- have a substantial adverse effect on personal privacy; or
- have a substantial adverse effect on a person in respect of his or her lawful business or professional affairs or on the business, commercial or financial affairs of an organisation.
There are also chapters on the administrative obligations of the Public Service and fostering effective information handling practices.
(I guess that wouldn’t be: we can’t give you that for privacy reasons?).
Discussion paper here.
Media briefing paper
In case your newsfeed hasn’t beeped you, the jury in Minnesota has awarded the record companies US$1,920,000 against Jammie Thomas for her 24 infringing downloads.
That’s right, $80,000 per infringement.
The original award, which the judge quashed “sua sponte“, was “only” $220,000. Presumably, there are going to be some interesting motions “non obstante veredicto“?
Evan Brown has some links. The Age (lid dip Matt Bromley).
Howard predicts (hopes?) this is the end for record companies.
According to the IPKat, the ECJ has introduced an EU-wide law of unfair competition/tarnishment for registered trade marks in L’Oreal v Bellure.
IP Australia has released 3 further consultation papers on “IP Rights Reforms”:
- resolving divisional applications faster
- resolving patent oppositions faster
- resolving trade mark oppositions faster
Submissions are sought by 17 August 2009.
Download the papers (pdf or .doc) from here.
There are also links to the earlier papers on ‘Getting the Balance Right’ and ‘Exemptions to Patent Infringement’.
Lea Lewin looks at why Virgin lost its opposition (in the Office) to Qantas‘ attempt to register
ALL DAY, EVERY DAY, LOW FARES
in the face of Virgin’s ‘trade mark’ for:
EVERY DAY LOW FARES
Unfortunately, Virgin’s ‘trade mark’ doesn’t exactly leap off its website (or the evidence it filed).
Given Qantas is on the verge of registration (and apparently using its ‘mark’ through Jetstar), I can see why Virgin would want one too. Duets looks at some reasons from a US perspective and some other things to think about.
But, surely the real question here, is how can any trade mark system allow anyone to register either (purely descriptive) ‘mark’?
Yesterday (in the USA) Google’s new trade mark policy and complaint procedure came into force.
All the details here.
Australia is still in the regions where both text and keywords are monitored.
Lid dip @TrademarkBlog (aka Marty Schwimmer)