For the half-year to 30 June 2015, the IPKat's regular team is supplemented by contributions from guest bloggers Suleman Ali, Tom Ohta and Valentina Torelli.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Monday, 4 May 2015

A Kat visits #INTA15: Prelude

#INTA15: an artist's impression ...
The International Trademark Association (INTA) is holding its 137th Meeting in San Diego this year, deep in the sunny south of California. This event, which the organisers have dubbed #INTA15 for Twitter purposes, is the largest annual gathering of intellectual property folk on the planet and, while ostensibly the Meeting is all about trade marks, there are many people present who practise in the fields of patent, design and copyright law and who may be attending in order to meet clients whose IP portfolios span many different types of IP right, as well as legal practices in other jurisdictions with which they may exchange work or, failing that, Christmas cards. Then there are the legions of service providers for the trade mark professions and brand-based industries: IP offices at global, regional and national levels, providers of data and search services, creatives, publishers, intelligence gatherers and academics.

All in all, the annual INTA Meeting is an impressive gathering.  From the official INTA Meeting home page we learned that more than 9,820 trade mark folk have registered, from over 150 countries (the figure was later fine-tuned to 9,855).  Admittedly there are more countries now when there were in 1986 -- when the organisation that was still known as the United States Trade Mark Association, before it rebranded and went global, attracted only around 1,500 registrants to the same city and some critics objected that the event had grown too big and had lost its distinctive character.

For many people the INTA week starts as early as the Friday before it, when exhibitors arrive and early registrants case the Convention Center and measure travel times (if you arrange meetings with clients and colleagues, it's imperative to know how much time it gets from address to address -- or even from one end of a crowded Convention Center to the other). Saturday now offers numerous meetings, as well as attractions which include the annual Gala Dinner. However, the official opening ceremony [really an Opening Ceremony: INTA does like initial capitals] doesn't take place till the Sunday afternoon.

The basic message
While each year's opening ceremony is different, they have something of a formulaic flavour to them. In general terms, everyone is warmly welcomed to enjoy themselves at this year's Meeting and the co-chairs enumerate the many opportunities available for anyone who wants to work hard, play hard, do a spot of networking and enjoy the local cuisine.  Then INTA's annual "end of term report" is read out. While the details change from year to year, the overall message remains relatively constant: it's usually along the lines of "INTA did really brilliantly last year, indeed more brilliantly than we promised it would do -- and next year it will be even more brilliant".  The reasons for INTA's brilliance are then usually recited: great members, great management, great administration and great commitment from the legions of INTAers who give so generously of their time, brainpower and unstinting commitment.  The summary of these factors never ceases to please the assembled audience and no dissent is ever expressed -- possibly because everyone likes to be praised but also, more significantly, because it happens to be true.  We are then treated to rousing speeches from the President and the keynote speaker.

This year's "end of term report" was delivered by INTA's Chief Executive Officer Etienne Sanz de Acedo. Etienne reviewed INTA's various interactions with government officials, judges and other organisations over the past year as well as its recent resolutions on repeat filings of trade marks, plain packaging and parallel imports.  He also mentioned "two great conferences" that INTA had run, in New York and Toyko [this Kat may have been inattentive at this point, but neither he nor the person sitting next to him recollected there being any mention of INTA's hugely successful conference, When Trademarks Overlap With Other Rights, in Munich last December.  That event was co-chaired by INTA Board Member and fellow Kat Neil Wilkof  -- and this Kat was the keynote speaker.  It generated ten real-time Katposts, which you can check out here].

Will the President be getting
a new neighbour?
Etienne then mentioned the activities of the Presidential Task Forces set up last year on Brands and Innovation, Building Bridges and Committee Structure and Participation, all of which have made progress in achieving their respective objectives, before looking to a future in which INTA's priority had to be internationalisation: INTA, he said, must be international in substance and not just in name. It was also necessary for the organisation to interact more with officials in the United States and to achieve this by enhancing its presence in Washington DC for better communication with the White House and other federal agencies. Further priorities included addressing the needs of members with regard the internet, which now accounted for at least 50% of trade, and this would require more interaction with ICANN.  In terms of its role in this regard, INTA had to ask itself if it was speaking just for brand owners or for a wider constituency of commercial interests. Moving from the internet to a more tangible concern, Etienne pointed out that the expansion of the Panama Canal was also a factor for trade mark owners to take into account, bearing in mind that it would nearly triple the volume of goods in transit from Asia, where much of the world's capacity for the manufacture is presently located.

The President for 2015, J. Scott Evans (Adobe Systems Inc), then took the floor. He reminded the audience that INTA was first and foremost a community, that we should always keep the consumer in mind and that we should think broadly in terms of "brands" rather than narrowly in terms of "trade marks".  Why? Because while the role of the brands in our lives remains constant, the role of the consumer has changed: consumers are online, connected and share their information -- and are more prepared to trust each other's judgement concerning products on the market than to accept the manufacturer's advertisements. Peer-to-peer information exchange now rivals product labelling as a means of communicating information, and this process is accelerated by the rise of Apps which enable consumers not merely to obtain product data but to compare competing products in terms of health, mode of manufacture, ethical corporate policies and the like,

Forward-thinking brands, said the President, take positive steps to engage with the social media in order to gain consumer trust and to involve consumers in the branding process.  He cited the example of Jones Soda of Vancouver, Canada, which has been able to attract and retain consumer loyalty to the brand by involving customers in the process of selecting the random artwork featured beneath the brand name on its goods.  This might cause problems for trade mark attorneys and lawyers, but it's good for the strength and credibility of the brand in the marketplace.  The President concluded by urging those present to think holistically about brands and the role of consumers: it was necessary for in-house attorneys to adopt the role of brand ambassador in order to do this.

The opening ceremony concluded with a powerful oration by this year's keynote speaker, Walter E. Robb, co-CEO of Fortune 500 company Whole Foods Market [Whole Foods Market might sound a bit descriptive for a company that markets whole foods, but surely only a cynic would take such a churlish view.  If you are selling whole foods, you don't want to run the risk of being associated with anything as contrived and non-wholesome as an artificially created and definitely non-organic brand name, would you? Incidentally, the company also appears to own a trade mark for the slogan "America's Healthiest Grocery Store", a slogan which, Merpel thinks, is plain descriptive if true and deceptive if false ...] Walter was an impassioned and persuasive advocate of his company's ethos, its concept of "conscious capitalism", the notion that companies can have purposes just as individuals can, and that the two key tenets of a brand that grows to embrace the needs of a growing company are those of authenticity and transparency. In this context,  "Values are things you believe; they're stakes in the ground ... they're living things".

"Conscious capitalism", Walter explained, is based on four elements:
  • the business must exist for a deeper purpose than merely that of making money: it should also exist for the purpose of reflecting its core values;
  • a business should have a multiplicity of stakeholders, and should achieve a level of stakeholder integration [which this Kat takes to mean that its activities should be able to integrate what the respective stakeholders -- presumably consumers, suppliers, employees, shareholders and so on -- view as being in their best interests];
  • conscious leadership to enable the business to grow and evolve;
  • conscious culture.
In some workplaces, hugging
is more or less compulsory ...
Walter then pulled a rabbit out of the hat by bringing on-stage a young female employee who spoke glowingly and enthusiastically about her work for the company, how much sheer fun it was, how the employees where she worked were always hugging each other and giving each other high fives, and so on.  It might be his European squeamishness, but this Kat was left with an uncomfortable feeling about this part of the presentation.  While there is no doubt that the Whole Foods Market brand is a popular and successful one, and he should not wish to question the sincerity of the young lady on stage, he would never wish to place a junior employee in a position where she was required to make such statements. Moreover, all that hugging at work is the sort of activity that can all too easily cross the line of innocent camaraderie and end up as a claim for sexual harassment.

This Kat is also aware that the Wikipedia entry for Whole Foods Market lists numerous criticisms and controversies that also make uncomfortable reading.  It is inevitable that companies that espouse ethical values will attract more attention when their conduct falls short of their stated ideals than would be the case for companies that have no scruples at all, and this is no doubt something that any company that espouses the principles of conscious capitalism will want to bear in mind when monitoring its activities.

The opening ceremony was followed by an eat-and-drink-all-you-can reception, where many souls with grand appetites recharge their gastronomic batteries by sampling the many delights on offer before trooping off for their dinners [there must be something about the sea air that gives trade mark enthusiasts an appetite, thinks Merpel].  Then, on the assumption that they must have burned up many of these recently-acquired calories in digesting their intake, those same souls speed on to one of the many available receptions at which they have the chance to top up again from the bulging buffets and brimming bars so thoughtfully provided by their hosts.

Never too late: if you missed the IPKat last week ...

The 44th weekly listing of the previous week's Katposts coincides with a public holiday in the IPKat's native England but, on the IP blogosphere, the Kats are working tirelessly once again to make sure that their readers are kept fully informed.  After all, "holiday" is no more than a state of mind, surely.  Anyway, with his usual economy of words, charm and panache, our good friend Alberto Bellan has been digging through last week's substantive Katposts and has summarised them for you in case you may have missed (or avoided) them:

Suleman’s post ‘Subject Matter Relationships: the need for strictness, complexity and fuzziness’ [here] addressed the different tests that are used to compare subject matter for priority, added matter and infringement. With this note, he provides further food for thought on patent law’s complexity, from Bilski to Teva v Leo Pharma, to the relation between patent law and economics. 

* Practically perfect in every way? Well it's not bad for a Distance Learning Course in Copyright

The King's College’s crew of leading copyright practitioners and academics is back in harness and ready to teach the 2015/2016 version of the Distance Learning Course in Copyright, Jeremy reports.

* No toleration for Novartis - rivastigmine patch patent declared invalid

Darren writes up Mr Justice Arnold’s fresh decision in Novartis v Focus, Actavis, Teva [2015] EWHC 1068 (Pat).

No cats are skinned, but publisher is "Berned" for Chesterton infringement

Valentina reports on a Spanish Supreme Court’s decision in a very peculiar Spanish copyright case, where the principle of non-discrimination is addressed and a copyright term of protection is held to last for 80 years.

* Demonstrations at EPO continue: SUEPO organises protest

Merpel writes a timely update on the last news from Eponia as the protests in Munich continue and SUEPO starts another round of demonstrations.

* Popcorn Time: a blocking order like any other? Birss J's decision in the post-Svensson debate

In case 20th Century Fox and Others v Sky UK and Others, Birss J addresses last-generation torrent software Popcorn, which is worrying right holders all over the world. The decision is as innovative as Popcorn’s technology -- with some bad news for CJEU’s approach in Svensson, explains Eleonora.

* The tale of Ticketogo, or Does My Bus Look Big in this Licensing Scheme? Part I: the issues

* The tale of Ticketogo, or Does My Bus Look Big in this Licensing Scheme? Part II: the decision

In these two posts, Merpel pens of an "unprecedented" pre-action disclosure application decision of Mr Justice Arnold in Big Bus  v Ticketogo [2015] EWHC 1094 (Pat).

* World Intellectual Property Day: report of the IPAN event and a proposal for a centralised recordal system

A few days before World Intellectual Property Day, Darren attended the celebrations that took place in London.

* BREAKING NEWS - EPO consults on proposed structural reform of Boards of Appeal

The European Patent Office has published on its website an online consultation on the proposals for the reform of the administration and structure of the Boards of Appeal, reports Merpel.

* How the EPO's sick leave policy stacks up internationally

A reader has prepared a detailed comparison of the sick leave policies of the EPO as they currently stand and as proposed to be reformed (explained here), set against those of some of the major EU and international bodies. The document goes far beyond what Merpel had hoped for. 

* Google says "We want your patent. Maybe."

With the brand-new “Patent Purchase Promotion”, Google is doing a bit of patent shopping around the world. What is this for, wonders David?

* Proprietor may be unhappy because BE HAPPY is not a trade mark

Can one be happy with a “BE HAPPY” trade mark? The General Court answers this question in Joined Cases T-707/13 and T-709/13, which Valentina reports.

* Green around the gills? Political party seeks to roll copyright back by three centuries

Karfriend Kevin Winters takes a look at UK Green Party’s 2015 manifesto on the state of UK copyright law.

* “A bird doesn’t sing because it has an answer": a famous quote and the stamp of (in)authenticity

In this post copyright moral rights enthusiast Mira T. Sundara Rajan, Professor of Intellectual Property Law, University of Glasgow, depicts a fascinating drama in which the principal actors are two literary ladies and, making a relatively rare appearance centre stage, the United States Postal Service.



Never too late 42 [week ending on Sunday 26 April] – C5's annual Pharmaceutical Patent Term Extensions Forum | UPC: patent attorney and client discuss | CJEU’s 2014 report | PUMA v PUDEL | Leaked Digital Single Market Strategy | Again of the EU Patent Package  and alleged dangers| EU TM reform | Is Svensson’s new public ok? | OHIM’s rebranding | LV’s pattern as trade mark | EPO and trade unions | Patent and first-mover advantage | Libraries’ right to digitise their collection in Germany.

Never too late 42 [week ending on Sunday 19 April] – WIPO Roving Seminars in Israel | Foster v Svenson, or "of taking pictures of your neighbours" | Trade marks and social networks | Jan Rosen on CJEU's public criterion to assess whether linking amounts communication to the public | EU Commission's misinformation about UPC | Dior v (Sirous) Dior | Lyricists and copyright | Banking secrecy v IP rights in AG's opinion for Coty Germany, C-580/13 | Le Monde on the EPO | Bundesgerichtshof's addresses short musical sequences in rap songs.  
Never too late 41 [week ending on Sunday 12 April] – Nagoya Protocol for dummies | The IPKat and his friends | Actial Farmaceutica Lda v Claudio de Simone | Article 5(5) of the EU's Trade Mark Directive 2008/95 | Article 16(3) of our beloved TRIPS | Italy v Spain in copyright enforcement online. 

Never too late 40 [week ending on Sunday 5 April] – OHIM and national res judicata in Case T 378/13 Apple and Pear Australia Ltd and Star Fruits Diffusion v OHIM |Scrabble v Scramble is not a game in JW Spear & Sons Ltd & Others v Zynga Inc | Nagoya UK and EU implementing regulations | Again on making available and communication in CJEU's decision C More | Brown epilators in Albania | More food for thought regarding EPO's G2/12 Tomatoes II and G3/12 Broccoli II | ASOS v ASSOS: the Court of Appeal, England and Wales' version | New reference to the CJEU on e-lending and digital exhaustion comes from the lovely Hague | CIPA recruiting for IP volunteers | UPC mock trial | Ukrainian not so posh to Porche | Lincoln Continental's back |Links to leaks in a new reference to the CJEU | IP Hall of Fame purrs. 

Sunday, 3 May 2015

“A bird doesn’t sing because it has an answer": a famous quote and the stamp of (in)authenticity

The IPKat welcomes the following guest post from copyright moral rights enthusiast Mira T. Sundara Rajan,  Professor of Intellectual Property Law, University of Glasgow, on a fascinating drama in which the principal actors are two literary ladies and, making a relatively rare appearance centre stage, the United States Postal Service.  This is how Mira unrolls the sequence of events and explains their legal significance:

In a commendable gesture, the United States Postal Service has issued a stamp honouring that most-maligned of modern professionals, a poet. Maya Angelou, an African-American writer, has been described by the Post newspaper in her native St Louis as “star, icon, woman,” and by Michelle Obama as "the master", She died in May of last year, at the age of 86. Her contributions were numerous – and, indeed, they transcended literature and spilled over into dance, music, and drama – but she remained best known for an early autobiography. Entitled I Know Why the Caged Bird Sings, the book became an internationally-acclaimed bestseller and, as her website notes, continues to be widely read as  “a course adoption at college campuses around the world".

The U.S. Postal Service chose an expressive and wonderfully appropriate quotation to accompany Angelou’s picture on the stamp: “A bird doesn’t sing because it has an answer, it sings because it has a song.” As noted by Ron Nixon of the New York Times, the U.S. Postal Service explained the choice of the quotation by commenting “that Ms Angelou had cited the quotation frequently in interviews and that it provided a connection to her 1969 autobiography, ‘I Know Why the Caged Bird Sings.’”

The picture and quotation were a perfect match. The stamp, and the honour intended, promised spectacular results.

Or did they? Life is never so perfect. Despite the best of plans and intentions, something had gone astray: Angelou never wrote the words that appeared beside her picture on the postage stamp. They were actually authored by Joan Walsh Anglund, a writer of “children’s and inspirational books.”

How, then, did these words come to be attributed to Maya Angelou, and to find their way onto the postage stamp?

It seems clear that Angelou loved them. She is said to have quoted this line in “many interviews,” though she never claimed it as her own. At least some part of the public believed that the words were hers. No less a figure than President Obama quoted the line and attributed it to Angelou publicly, at least once – in the course of a 2013 awards presentation honouring artists receiving the National Medal of Arts and the National Humanities Medal.

Joan Walsh Anglund
Members of the USPS dealing with the commemorative stamp therefore had reason to think that the quote originated with Angelou. But it is very interesting to consider the reasons why the USPS might have thought so – not because Angelou ever said that the line was hers, but because they heard about the quote in association with her, because she quoted it frequently, because others (including those in authority) said it was hers ... above all, perhaps, because it seemed appropriate. After all, the similarity of image, idea, and sentiment between this epigram and the title of Angelou’s autobiography is both obvious and striking. The attitude of the USPS was not founded on anything that could be called knowledge; it was, rather, based on rumour, belief, received wisdom, myth, or legend.

The USPS made a mistake. There is nothing so extraordinary in that; but, what is extraordinary, is that  the U.S. Postal Service now has no interest in correcting the error. The stamp will go ahead as is. And why? According to an email from David Partenheimer, a spokesman for the USPS, to the New York Times: 
“The sentence was chosen to accompany her image on the stamp to reflect her passion for the written and spoken word. ... [It] held great meaning for her, and she is publicly identified with its popularity.”
And there’s the rub. Anyone who cares about history, culture, literature, or human rights should be given at least a moment’s pause by this explanation. Partenheimer makes two extraordinarily telling points about the choice. First, the sentence was chosen because it was, yes, appropriate: it seems right that Angelou should have written it. This is the way the human mind works – why generations of people thought that the world was flat, or the sun went round the earth. It “makes sense.” But the fact that Angelou didn’t write these words opens up an alternativee universe of interesting possibilities that flow, not from any limited human sense of what is “right” or “fitting,” but from the real world of actual possibilities based on (dare we say it) the truth. One of those possible, interesting implications is that Maya Angelou’s thought was mirrored in similar thoughts and reflections expressed by other writers and thinkers – perhaps she influenced them, perhaps they influenced her, or perhaps they were all influenced by something like Hegel’s world-spirit at work at that time. By recognizing authenticity, we end up with a more accurate, comprehensive, and richer picture of reality. We achieve an awareness of the interconnectedness of things – ideas, thoughts, words, sentiments.

But the second justification noted by Partenheimer is, if anything, still more disturbing – Angelou is “publicly identified” with the “popularity” of the words. Well, he was careful – he did not exactly say that Angelou was publicly identified as the author of the words. But that idea seems implicit in his statement. Since the association with Angelou was the main reason behind the popularity of the quote, according to Partenheimer, that is reason enough to create a commemorative stamp which places her picture alongside an unattributed version of that quotation.

And the combination of image and word seems powerful. What is likely to happen in the mind of a person who sees the stamp? Will the response be to admire the quotation and wonder who wrote it? Or will the eyes travel, quite naturally, if carelessly, to the picture of the writer beside them, the author of a book with a related title – birds that sing and sing again – leading to the natural, if careless, thought, that here, then, is the picture of the author of those words?

The U.S. Postal Service is no ordinary institution: it is an agency of the U.S. government. It represents the government of a country – and not just any country, but the most culturally dominant country in the world. It is empowered to undertake action in support of American culture, and, conversely, it can also create damage. The USPS has power; and with power comes responsibility. Commemorative stamps represent the cultural achievement of a country, and they carry word of that achievement around the world. The United States is only one of many countries to issue them, and to make them an occasion to celebrate writers. Independent India issued them, too; though, as the example pictured here shows, India took the course, perhaps wiser, if less ambitious, of including the writer’s picture and years of life, alone – no words.

But the US Postal Service doesn’t need to care about its mistake, for the simple reason that it has violated no U.S. law. The United States copyright law, which may well be unique in the world in this respect, protects no general right of attribution. It rejected this possibility when Congress decided not to implement generalized “moral rights” for authors at the time of joining the Berne Convention for the Protection of Literary and Artistic Works, in 1989. Nor has the United States compensated for this shortcoming in copyright law by providing a right of attribution for authors elsewhere in its legal system. The only exception to this rule is a limited right of attribution for artists working in the visual arts. This artists’ attribution right has been written into a special statute known as the Visual Artists Rights Act of 1990, or VARA, section 106A of the U.S. Copyright Act. As American copyright scholar Jane Ginsburg has noted before, attribution for authors at large simply remains unrecognized. No moral rights, no attribution – and, for the USPS, no problem.

Where does this leave us, as far as the one thing that matters is concerned – the preservation of American literary heritage? Future generations will receive a stamp, issued in 2015, with a picture of a poet and an accompanying quotation that is not explicitly attributed to anyone. The picture, itself, may prove to be nothing less than an implicit form of misattribution, leaving an impression in the receiver’s mind that Maya Angelou wrote those beautiful, interesting, and memorable words. In most other countries in the world – India, for example – the issuer of the stamp would be legally, as well as ethically, responsible. But not in the United States.

As for Ms Anglund, the now 89-year old author of the quotation, which dates from a 1967 book – as the U.S. Postal Service might say, “Never heard of her" [Postal Service officials said they had not heard of Ms Anglund’s book, “A Cup of Sun,” until asked about it by The Washington Post, which published an article about the stamp on Monday": New York Times]. Ms Anglund’s reaction to the debacle was that “she was a fan of Ms. Angelou’s and hoped that the stamp would be successful.”  Is life’s greatest beauty to be found, after all, in its imperfections?

Green around the gills? Political party seeks to roll copyright back by three centuries

As the UK's General Election draws closer, it has to be conceded that intellectual property has again largely avoided the limelight in the endless arguments between the contending political parties and their candidates as to what's best for the economy, the country, mankind and civilisation as a whole.  However, some eyebrows have been raised at the position taken by one of the political parties -- the Green Party -- with regard to copyright. In this guest blogpost, Kevin Winters explains:

As the IPKat has regularly pointed out, intellectual property doesn’t often feature prominently in the minds of politicians, at least not in the run-up to a General Election.  However the UK Green Party has decided to change this, by taking a very clear position in its 2015 manifesto on the state of UK copyright law.  Under the heading of ‘Information and Digital Rights’, the Green Party states that, if elected to form a government:
“We would…Make copyright shorter in length, fair and flexible…”
The Party went on to give more detail on this by stating in policy documentation that this would involve introducing
“... generally shorter copyright terms, with a usual maximum of 14 years”.
Despite some initial confusion regarding when the duration of copyright protection would begin, the Green Party did announce that protection would last for 14 years after death (and that they were reviewing their copyright policy).  This pledge to reduce copyright protection from 70 years to 14 years after death has been met with criticism from many writers and artists.   
Katfriend and IP specialist Graeme Fearon had this to say on the decision by the Green Party to pursue this policy:
“Given that the Greens’ sole MP in the last UK parliament represented Brighton -- a town full of authors, artists and creatives of all description who rely heavily on copyright to earn a crust -- this is quite a brave stance.  Caroline Lucas (the MP in question, currently a candidate for re-election) has explained that this is “just a proposal [and so] isn't in our general election manifesto.  It is not something we want to introduce as a priority in the next 5 years.”  However, the manifesto clearly proposes to amend copyright to make it “fairer, more flexible and shorter. To bring the law up to date to better reflect the demands of the digital age.””
This pledge by the Green Party does go against the grain.  History has seen copyright protection for authors' works gradually extended: the Statute of Anne (1709 or 1710, depending on whichever way you look at it) did provide for a 14 year protection, which grew and grew till it reached the Berne Convention (1886) norm of life plus 50 years.  Today the vast majority of copyright legislation provides for an extended period of protection for newly created copyright works: life plus 70 years under both the US Copyright Act (1976) and the UK Copyright, Designs and Patents Act (1988).  
Looking at the duration of protection currently afforded under UK copyright law, Graeme adds:
“It hardly needs saying that this can be a very long time – the work of a long-lived child prodigy could conceivably be protected for 150 years.  The rationale for this has always been to offer authors and artists a fair chance to derive a proper income from their work during their lifetime, and to be able to bequeath this value to their estates like any other property.  But why should the children (or even grandchildren) of an author be able to enjoy the fruits of their ancestor’s hard work and ingenuity in a way that isn't offered to the descendants of, say, inventors or plant breeders?” 
There is an added dimension to the Green Party’s policy regarding the reform of copyright law which its manifesto fails to address.  As the UK is part of the EU, any change in the law of copyright would have to be compliant with European legislation (the current regime being the result of the Copyright Term Directive).  Could it be that the party's support for an in-out referendum on EU membership has negated any need for discussion on this point? 
Patiently awaiting that first royalty statement ...
Given the response from authors and creatives towards the Green Part and their proposed 14 year copyright protection, it is perhaps wise for some further thought to be given to it -- some authors have been reported to have had to wait between 12 and 13 years before they enjoyed any royalty payments from copyright protection.  Further, it may also be wise for a wider audience to be consulted on this particular policy: while a 14 year copyright is recommended by academic research, there has been no reported input from other stakeholders and interested parties.    
For any IP law enthusiast it is always pleasing to see it figure in political party manifestos.  However, the Green Party appears to be almost alone in its desire to alter the current framework for copyright protection (though the Pirate Party would reduce the term still further, to 10 years).  It will be interesting to see whether the views expressed by authors and writers have any bearing on the Green Party’s position on reforming copyright in the UK.

Friday, 1 May 2015

Proprietor may be unhappy because BE HAPPY is not a trade mark

The General Court has issued another judgment relating to the controversial issue of promotional statements that may also serve as trade marks in the Joined Cases T-707/13 and T-709/13, shattering the dreams of happiness of the CTM proprietor Steinbeck GmbH: the Court confirmed the cancellation decisions of the 'BE HAPPY' marks on the absolute grounds provided by Article 52.1.a) in combination with Article 7.1.b) of Regulation 207/2009.

Steinbeck registered with OHIM two word marks for the sign 'BE HAPPY', the first in 2007 for goods in class 16, 21, 28 and 30 and the second in 2010 for goods in class 9, 11 and 18.
Be happy with Steinbeck

In 2012, the company Alfred Sternjakob GmbH & Co. KG applied for invalidity of the BE HAPPY CTMs on the grounds that they lacked distinctive character and were descriptive of the characteristics of the goods they covered, according to Articles 7.1.b) and 7.1.c) of Regulation 207/2009 respectively .

The Cancellation Division upheld the requests for invalidity, and the Board of Appeal confirmed the decision that the registrations were null and void because the marks were not distinctive.

In particular, the Board of Appeal recognised that the relevant public, whose perception is paramount to establishing whether a mark is distinctive, comprised not only English-speaking consumers but also those speaking German, in that the marks consisted of a basic and common English words which, on their own and in their conjunction, could be easily understood by both categories of consumers. In addition the sentence “be happy” is a fundamental component of the lyrics of the very famous song 'Don't worry, be happy', which is common knowledge.

Have you told me
Then the Board of Appeal underlined that the BE HAPPY marks complied with the rules of English syntax and grammar and their meaning resulted in the plain exhortation to - be happy! No originality or unusual structure was present to justify a conclusion that the marks had some fancifulness which conferred distinctiveness. On the contrary, the public would perceive the CTMs as advertisement statements conveying positive emotions and inciting to purchase the goods they covered.

The Board of Appeal went on and specified that such a positive invitation to buy, as provided by the contested BE HAPPY CTMs, could apply to any provider of any goods and, therefore, to any purchasing situation. Likewise, the CTMs evoked the joyful feeling for shopping and using the goods in respect of which protection was claimed, so that consumers could directly link 'BE HAPPY' to those types of goods. In the view of all these arguments the BE HAPPY CTMs could not identify and distinguish Steinbeck's goods in the market.

Steinbeck appeal to the General Court presenting a sole plea in law based on infringement of Article 52.1.a) in combination with Article 7.1.b) of Regulation 207/2009.

The Court sided with the Board of Appeal and reiterated its conclusion in regard to both the relevant public's identification and perception of the marks, not challenged by the parties, and the customary nature and structure of the CTMs which invited the consumer to be happy.

In addition, the Court underlined that, although the contested marks were not semantically descriptive of the goods they covered, this nonetheless failed to confer upon them distinctiveness. This was even more so given that BE HAPPY could describe the commercial value of such goods as deriving from an advertisement statement which caused the consumer to shop for them.

The General Court had to deny that the BE HAPPY CTMs could fall within the case-law admitting that a promotional formula can also serve as commercial origin identifier if it implies some interpretation or a cognitive process on the part of the relevant public. This was still confirmed despite the fact that the signs were short enough to be easily remembered and that for a sign to be distinctive it is not necessary that they are particularly original or fanciful.

However, besides constituting a promotional formula, these CTMs produced no resonance in the perception of the relevant consumers as is required for the purposes of the mentioned case-law. The Court concluded that the BE HAPPY marks were devoid of distinctive character because of their laudatory and promotional nature, this assessment being also unchallengeable in respect of Steinbeck's further arguments.

Significantly, the Court had to remind that the assessment of the distinctive character is undertaken within an abstract and in a priori examination aim at establishing whether the mark can lead consumers to distinguish the products and services it covers in the market. Consequently, it dismissed Steinbeck's claim that because of the placement of the BE HAPPY sign on the goods concerned, in a typical position for trade marks, consumers would have perceived them as commercial source identifiers.

The General Court finally rejected the argument that the Board of Appeal applied the case-law on mere slogan marks that are devoid of distinctiveness and had not instead applied the case-law which considers that a slogan can at the same time be a proportional formula and a trade mark, provided that the sign can serve identify and distinguish the goods and services of an undertaking in the market. The Court referred again to the case-law requesting that the slogan be more than a customary promotional message but that it also show a certain originality to serve as a trade mark.

Google says "We want your patent. Maybe."

The IPKat recently noticed Google’s latest initiative, which the search giant has alliteratively dubbed the “Patent Purchase Promotion”.This Kat belatedly spotted that Mike Mireles had already covered this over at our sister blog IP Finance, but thought that the initiative by Google might be of general interest to this blog's readers as well as providing a timely opportunity to highlight the IP Finance blog for readers interested in those issues that arise when money meets intellectual property rights.

Put at its simplest, Google is looking to buy patents. It is going to open a process where sellers can offer their patents to Google. The seller sets a price for each individual patent (must be a US patent, and not a portfolio or a family), and Google will decide to buy or not, with no negotiation taking place. As described on the Google Public Policy Blog post “Announcing the Patent Purchase Promotion”:
So today we’re announcing the Patent Purchase Promotion as an experiment to remove friction from the patent market. From May 8, 2015 through May 22, 2015, we’ll open a streamlined portal for patent holders to tell Google about patents they’re willing to sell at a price they set. As soon as the portal closes, we’ll review all the submissions, and let the submitters know whether we’re interested in buying their patents by June 26, 2015. If we contact you about purchasing your patent, we’ll work through some additional diligence with you and look to close a transaction in short order. We anticipate everyone we transact with getting paid by late August.
(There is one slightly arcane restriction on which patents are eligible to be sold. Google says it is not interested in any patent subject to a terminal disclaimer, due to the complications arising from splitting ownership between such a patent and other patents related to the terminal disclaimer.)

The terms of the deal are relatively straightforward. Assuming that the patent survives scrutiny of due diligence, the seller will assign it to Google, and will be granted a licence to use the invention. As to the terms of that licence, the FAQ says:
Question: If Google ends up buying my patent, can I still practice the invention?
Answer: Yes. As part of our Patent Acquisition Agreement ( see section 4.4), sellers will retain a license back to their patent. For you lawyers out there, the license is “irrevocable, nonexclusive, nontransferable, nonassignable (including by operation of law or otherwise), nonsublicensable, worldwide, [and] fully paidup.”
As one would expect by now, this rather clever company has framed its offer pretty shrewdly. They tell the world that they are open to purchasing patents, with no hint of any characteristics that might make those patents desirable (for example what fields of technology they are interested in), and no hint of what they might be willing to pay for any patent.

The IPKat expects that there will be a considerable flood of submissions from people hoping to make a killing at Google’s expense. Of these, it is natural to expect that many if not most will be overvalued by the seller (at least from Google’s standpoint), and that a much smaller percentage will be fairly priced or significantly underpriced (again from Google’s standpoint).

Having made no commitment to purchase anything yet, Google can confine itself to cherrypicking the bargains that it spots. While it might choose to buy very large numbers of patents as long as they are fairly priced, this Kat suspects that this is not about adding significant numbers of patents as a mere numbers game, but rather is intended to flush out some real gems. The IPKat may be wrong. It’s happened before.

Given this expectation, the IPKat is not sure that he is entirely convinced by the Google’s averred reason for the initiative:
We are looking for ways to help improve the patent landscape, and we hope that by removing some of the friction that exists in the secondary market for patents, this program might yield better, more immediate results for patent owners versus partnering with nonpracticing entities.
Of course it can’t be entirely selfless, and the IPKat suspects that Google is not expecting anyone to believe that it is purely an altruistic move. However, if it works, it’s probably a win-win for both parties when a patent is selected for purchase. Google (presumably) gets a patent it wants at a very good price, and the seller gets exactly what they asked for. A bird in the hand, and all that.

The IPKat will watch with interest and hopes that at the conclusion of the process there is some high level analysis released of the numbers of patents submitted and the percentage actually purchased. Finding out the price per patent actually purchased would be wonderful but this might be too much to hope for.

Thursday, 30 April 2015

How the EPO's sick leave policy stacks up internationally

In a post earlier this week on the continuing unrest at the EPO, Merpel mused on whether the EPO’s proposals to reform sick leave and long term invalidity policies were really so very different to the policies applying in other intergovernmental bodies and IP offices in Europe. Here's what she wrote:
She wonders: can some kind reader compile a comparative table of sickness-related provisions and benefits that apply for each of the organisations mentioned above, and any others she may have overlooked, so that she can publish it here and readers of this weblog can see for themselves whether the EPO staff have a genuine grievance or are merely in training for the Marathon Moan event at the next Olympics?

Well, this cri de coeur came up trumps. A very kind reader, who shall remain anonymous but who deserves enormous thanks nonetheless, has prepared a detailed comparison of the sick leave policies of the EPO as they currently stand and as proposed to be reformed (explained here), set against those of the following bodies:
  • CERN
  • European Commission
  • NATO
  • OECD
  • UN
  • WIPO
  • World Bank
  • Austrian Civil Service
  • German Civil Service

The document, which Merpel has hosted here, goes far beyond what Merpel had hoped for. The author cites sources carefully, explains the conclusions reached, and provides measured analysis of how the EPO’s regime compares to the other organisations listed. If any kind reader with knowledge of OHIM’s sick leave policy can add to this table and/or provide a copy of the sick leave provisions, Merpel would be very interested to know how it compares. She assumes it mirrors the EC provisions, but perhaps not. 

Table 1: Main Findings
Number of days of uncertified sick leave in annual cycle
Maximum duration of uncertified sick leave (working days)
Latest day of sick leave on which a medical certification has to be issued
EPO current
EPO proposed
1 – 4
World Bank
Austria, civil service
Germany, civil service

Merpel’s most concise explanation of the main table of findings, reproduced above, will follow an imaginary employee – let’s call him Benny -- who has the flu and is absent from work for a few days as a result. 

The middle column tells us that in most organisations surveyed, Benny can only be absent from the office without a doctor’s certificate for 2 or 3 days. In NATO and the UN, for instance, Benny needs to have a doctor’s certificate if the absence lasts beyond two consecutive days. At the EPO and European Commission, Benny needs to visit a doctor and obtain a certificate if the absence lasts beyond three consecutive days. So far, so good, and the EPO is in line with most of the other organisations.

Assume Benny has returned to work after three days’ absence. Six months later, he gets food poisoning and is incapacitated for 24 hours, requiring him to take a day off work. In every organisation surveyed, including under the EPO’s current regime, Benny could report in sick, tell his boss he expected to be in tomorrow, and this would be excused. Under the EPO’s new regime however (see column 1), Benny would already have completely exhausted his entitlement to uncertified sick leave for the full year, and would thus be absolutely required to visit the doctor that day and obtain a certificate to prove he was ill. He would have to produce that certificate to the EPO on the same day. (Merpel doesn't know how this works in Germany, Austria and the Netherlands, and has only the sketchiest understanding of human healthcare, but she sometimes has difficulty in getting a same day appointment with her vet. Presumably humans never have such problems.)

Benny would have to juggle these obligations with the requirement that he be at home between the hours of 10am – 12 midday and 2 pm – 4 pm in case the EPO decided to send a doctor to the house to check he was not malingering. He could leave the house, if he managed to get in touch with the President of the EPO and Mr Battistelli was agreeable to his absence from home.

For readers who want to read more and to verify that the data is reliable for comparison purposes, Merpel  can only suggest they pore over the details provided by her anonymous source in the linked document.

Merpel's own instinctive reaction is that the current allowance of 12 days uncertified leave in both the EPO and European Commission appears very generous,  but this does not justify the level of bad faith and suspicion evident in the reformed system. What employee could feel that there can be a relationship of trust with an employer who insists on a doctor’s certificate being provided on the very first day of an illness and who also (uniquely among the organisations surveyed) imposes an obligation to wait at home for the company doctor to ferret out fraudulent claims of illness during both morning and afternoon on each and every day when one is ill.

Finally, while the survey mentions the sick leave policies of the German and Austrian civil services, Merpel wonders if there are any readers willing to share how sick leave operates in each of the national IP offices which are under the stewardship of the delegates to the Administrative Council. These delegates had no hesitation in imposing the new sick leave regime on EPO employees at the request of the EPO President. Merpel wonders:
  • Did the AC delegates approve the EPO's new regime because similar provisions already apply in their own national IP offices? 
  • If not, should readers expect their AC delegates to push through similar reforms on their home turf?
  • If the national regimes are more liberal, and the AC delegates don't intend to push through similar reforms at home, is there something in the Weissbier that causes one's views to harden while in Munich and to soften on the plane or train home?
Merpel thinks she knows the answers -- but she would love to be wrong.

As ever, Merpel welcomes comments, but begs to remind readers of the following:
Henceforth, in respect of all EPO-related blogposts, no comment will be posted if it is merely ascribed to "Anonymous".  Any reader wishing to conceal his or her identity must adopt a pseudonym (which should not be obscene and should not be the name, or the mis-spelling of the name, of a real person).  The pseudonym need not be an actual login name, as long as it is stated clearly at the beginning and/or end of the comment itself. This way, it will be easier for people who post later comments to identify and remember the earlier comment-poster and to recall the discussion string.  Where, as has already happened on occasion, a string carries over from one blogpost to a later one on the same or a related subject, readers will be encouraged to use the same pseudonym for the sake of continuity.

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