Suspending a trade mark opposition

On application by Darrell Lea, the Registrar suspended Darrell Lea’s oppositions to the registration of some purple trade mark applications by Cadbury purportedly pursuant to reg. 5.16.

Finkelstein J has now found that the Registrar does not have power to suspend oppositions indefinitely.

Given my involvement in matters purple, let me just refer you to Nicholas Weston’s consideration.

Darrell Lea Chocolate Shops Pty Ltd v Cadbury Limited [2008] ATMO 6 (15 January 2008)

Cadbury UK Ltd v Registrar of Trade Marks [2008] FCA 1126 (1 August 2008)

The sky is falling

with apologies to Chief Vitalstatistix:

ARIA’s half year figures for 2008 show that sales of recorded music are still falling – down 4% on the corresponding period last year.

But guess what, the decline in sales of physical copies is almost all set off by the rise in digital sales: 12 million digital tracks up from 8 million for the 6 month period last year.  

According to ARIA:

“… figures which demonstrate the beginning of a remarkable transition to a whole new economy that is still only in its infancy.”

Perhaps in a sign of gloom for music industry executives, a lot of these downloads were single tracks rather than albums, but digital albums still increased by 55%.

ARIA press release here; full stats here.

Upgrading

You may have noticed that IPwars has been more than usually missing.

This is mainly because the software for IPwars has become obsolete and I am attempting (so far, rather unsuccessfully) to transition to new software.

Please bear with me while this gets sorted out.

Patentable subject matter

A ‘manner of manufacture’ is something ‘more’ than a mere discovery or principle: it must be some thing or practical means of applying that principle in a field of economic endeavour (qua NRDC at e.g. [15] and [22]) and now, apparently, we have an example of a discovery or principle which was not patentable as being too abstract rather than a practical application …

I am not sure if what was discovered (at long last?) was the neutrino atom or the new science of the wonderfully named subtronics or pace claims 2 and 3 “a[ny] practical application of the newly discovered laws of electrical induction …”

IPKat has the run down here; the full application can be found here (enter 2003208113 into the application field but you might have to read and click the disclaimer here) and DC Spann’s decision here.

ACIP inquiry into Patentable Subject Matter still here.

Domain name disputes in Australia

Mark Bender, at Monash University, has written about domain name disputes in Australia …

According to the abstract:

The objective of this paper is to provide an overview of the law in relation to domain name disputes involving trademarks that applies in Australia. Generally the focus of this paper will be confined to consideration of domain names ending with the .au suffix. An overview of the rights associated with domain names, registered business names and registered and unregistered trademarks is provided, as is an outline of the domain name dispute resolution processes and some some summary statistics and key cases in relation to domain name disputes.

The article has been published in the Monash Business Review vol.3 No. 3 (2007) and appears on SSRN here.

No doubt reflecting its business review audience, much of the article is taken up with discussing ways of protecting trade marks under Australian law and a flirtation with the 2000/2001 controversies over whether the UDRP is biased towards rights owners. Pp. 10 – 14 hit the .auDRP compared to the UDRP and flag some of the Australian court cases that I wasn’t aware of rather than a detailed analysis of the decisions under the .auDRP. A good starting point is CSR Ltd v. Resource Capital Australia Pty Ltd, 128 FCR 408.

Lid dip, Prof. Manara.

Lots of Australians involved in a domain name dispute here.

Another Australian, also at Monash, took an in-depth examination of the international domain name law here.

Parody

Nicholas Suzor tries to work out where parody fits into Australian copyright law …

here.

A parody, or is it a satire ?, here.

Copyright owners versus ISPs

Reports today that the UK Government has ‘brokered’ a deal between copyright owners and ISPs forcing ISPs to take a more pro-active role in cutting off illegal downloaders …

According to the IPKat things may be a little more complicated: at least one of the ISPs claims all it has agreed to do is write to the downloader and tell them that someone alleges they infringe copyright.

IPKat here.

Kim has links to the UK Government’s announcement here and expands on the details.

All this is directed at downloaders. Here, of course, ISPs (I really mean ‘carriage service provider’, start here), engaging in Category A conduct get some protection; but nonetheless can have court orders inflicted on them to cut off accounts – who is going to bear the legal costs of a successful court action to achieve this? And there is more limited protection for other types of conducrt depending on whether the activity is Category B, Category C or Category D activity – I kid you not!

Of course, if you’re not a ‘carriage service provider’, you should be shaking in your boots; especially once you get a letter from someone claiming to be a copyright owner (or acting for one) see Metro on George and Cooper v Universal, although depending on your degree of involvement you may be able to argue the latter case in particular is a bit unusual.

Even if you are a ‘carriage service provider’, it may well be that you can’t afford to sit back and wait for letters of demand (I mean, notifications) to come in:

first, you may still be liable for infringement if you become aware of infringing material or of facts or circumstances that make it apparent that material is likely to be infringing …;

secondly, Viacom and the English Premier League (no, there is no copyright in a sporting spectacle, but there is in the broadcasts) contend under the US templates of these provisions that Google must be aware because there is too much infringing ‘stuff’ out there ….

Dollars v sense

The latest plans to extend copyright term in the EU seem to have fired up a collected who’s who of copyright academics …

A band of intrepid professors have taken to the pages of the Times to point out why it’s a bad idea, via IPKat also having a go at performer’s rights

Another group calling themselves “Sound Copyright” have also reacted strongly (and negatively), via IPKat again

And, soon to visit these shores (here and here), Bill Patry http://ipkitten.blogspot.com/2008/07/sound-copyright-time-to-take-action.htmlweighs in from across the water

and, not to be outdone, some academics have decided to counter-attack against the copyright owners’ rather restrictive interpretation of the ‘3 step test’: IPKat and Patry both joining in.

Patentable subject matter issues paper

ACIP has released its issues paper on Patentable Subject Matter …

As feared, the ‘archaic’ language of ‘manner of manufacture’ cops a review, but so does the ‘generally inconvenient’ proviso.

Under the headings ‘Objectives of the test’ and Ethical and other constraints on the test’, it pretty much throws wide open the issue of whether there should be a patent system, what it should protect and what should be excluded.

Much of this debate is, of course, ultimately pointless given the constraints of TRIPS and art 17.9 of AUSFTA. Nonetheless, it leaves plenty of room for debate about excluding business method patents, software patents (because that works oh so well in the EU) and, of course, (bearing in mind we now have a Senate where another party such as the Greens and Family First must vote with the Government for it to get a reform through) human beings etc.

Prof. Mark Lemley has perhaps the clearest explanation of why the business method/software type exclusions don’t work; they only lead to even more wasted legal expense on trying to draw the line. See e.g. his brief in the In re Bilsky litigation in the USA (pdf) or, for those of you with iPods, his fascinating interview with David Levine at hearsay culture (or through iTunes Store). Patently-O has a great set of links and thumb nails on the litigation and the briefs.

Of couse, we can always fall back on that old rubric, particularly helpful when your client comes in for advice, this is not the sort of thing that is patentable or, as the Issues Paper points out, pilots of aircraft shouldn’t have to worry about these things! Still, I must be positive, look on it as an opportunity to fix the mess created by Phillips v Mirabella (if only we couldn’t be a little bit nervous about (a) the rag bag of other issues and (b) what will no doubt be the Parliamentary draftsperson’s sterling efforts).

The issues paper is here (pdf) and your submissions should be in by 19 September 2008, after all, it shouldn’t be too hard to put together your thoughts on this little topic should it?

The ALRC’s Gene Patenting and Human Health is only 4 cm thick.

International agendas

WTO and EU …

IP Watch reports that IP is on the agenda next week (beginning 21 July) in the DOHA negotiations and identifies key issues raised by a “regional groupings such as African, Caribbean and Pacific developing nations in league with Brazil, China, India and Europe” here.

More GIs and better acknowledgement of traditional knowledge seem to be the main concern. Australia is one of the opponents – which makes sense at least in respect of GIs.

Also, IP Watch reports on IP developments in the EU including an extension of term for copyright in sound recordings (also known as Cliff Richard’s superannuation?) Get ready for pressure to increase copyright protection here by another 25 years! IPKat’s take here.

There is also a discussion paper on copyright exceptions on the internet. One might hope that this means they have discovered they have gone too far, but where the EU is concered it usually means that copyright owners’ rights need to be improved.

Then, there is to be an investigation into the quality of industrial property rights.

The IP News report has links to the EU papers.