The team is joined by GuestKats Mirko Brüß, Rosie Burbidge, Nedim Malovic, Frantzeska Papadopolou, Mathilde Pavis, and Eibhlin Vardy
InternKats: Rose Hughes, Ieva Giedrimaite, and Cecilia Sbrolli
SpecialKats: Verónica Rodríguez Arguijo (TechieKat), Hayleigh Bosher (Book Review Editor), and Tian Lu (Asia Correspondent).

Wednesday, 25 April 2018

The Wundversorgung decision - proportionality and injunctive relief in Germany

In Dave's view, all nap-time injunctions
were just and proportionate 
Injunction, Injunction, what's your function?  Even for those who are unable to reminisce of the wonders School House Rock, the question still rings true.  Indeed, at this year’s Fordham IP Conference the topic of proportionality of injunctive relief was intensely debated revealing stark differences in different jurisdictions. The AmeriKat's friend, Christopher Weber (Kather Auenstein) reports on a very different view of the role of proportionality in Germany when granting an injunction.  Over to Christopher:  
"It’s well known that at least since eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) injunctions are not automatic anymore in the U.S. They are not automatic in France and many other jurisdictions, either, while Germans and German law view it as a matter of course that the infringement of an absolute right, such as a patent or trade mark, leads to the automatic granting of injunctive relief. When confronted with an allegedly apparent lack of any proportionality in that automatism, Germans tend to shrug and respond that there is the FRAND defense and a claim for compulsory licenses and possibly a grace period. This response implies that these respective tools are more than enough proportionality for our sense of justice, thank you very much. Meanwhile, the quantity of successful FRAND defences and compulsory licenses are rarely mentioned in this context … and a grace period has yet to be granted for e.g. patent infringement.  
Against this background of automatic injunctions, avid IPKat readers are aware that – to make matters worse for infringers - the meaning of cease and desist has come to include also recalling products, at least under unfair competition law. In the decisions “Hot-Sox” (dated 19 November 2015 – I ZR 109/14) and “RESCUE Tropfen” (decision of 29 September 2016 – I ZB 34/15) the Federal Court of Justice (FCJ) found that a cease and desist order includes the recall of previously sold products. The infringer is thus obliged to stop further infringement by companies downstream the distribution chain. These decisions were met and are still being met with a lot of criticism in Germany.

In any case, the relevance of these decisions could have possibly been explained away then by pointing out that there is no separate claim for recall of infringing goods under German competition law. There are, however, such claims under German patent- and trade mark law. Thus, there is a lex specialis argument that injunctions should not include recall under laws which include a special claim for this.


This hope has now been dashed by the recent FCJ decision "Produkte zur Wundversorgung" (Decision of 11.10.2017 – I ZB 96/16) on trade mark law. The trade mark owner had claimed infringement of his trade marks and subsequently obtained a preliminary injunction, which it served upon the infringer. The infringer did not recall the products already delivered to his customers and did not inform his customers about the preliminary injunction that had been issued. The trade mark owner requested an administrative fine, which was set by the Regional Court. The Court of Appeal rescinded the fine and justified this essentially by the fact that the injunction debtor is in principle not responsible for the actions of third parties. The trademark owner appealed this decision to the FCJ – which then applied the reasoning from the previously mentioned decision on competition law.

Thus, there are now aligning decisions on competition law and trade mark law by the I. Senate of the FCJ. Patent law is still notably absent and probably the X. Senate of the FCJ is now the last remaining reason for hope that injunctive relief is again pruned back.

The upshot is:
  • Cease and desist is less flexible in Germany than in other jurisdictions.  
  • It is also broader than previously thought, even in Germany.  
  • On the one hand it can be difficult for the infringer to identify which steps/measures must be taken to comply with an injunction.  
  • On the other hand, it might be difficult for the IPR owner to assess the extent of his/her liability in case the enforcement of the injunction turns out to be unfounded.  
The following part of the decision by the FCJ provides some guidance (numerous references to previous decisions omitted to improve readability):
In particular, an obligation to cease and desist is not merely an act of inaction, but also includes the obligation to take actions to remedy a previously created state of disruption if this alone is sufficient to comply with the requirement to cease and desist. This is the case if the failure to remedy the state of infringement is tantamount to the continuation of the act of infringement. Even if the infringing act giving rise to the injunctive relief is not a permanent act of the debtor, an obligation to refrain from or tolerate an act may include an obligation to perform actions if the debtor can only fulfil his obligation to cease and desist or to tolerate if he also performs actions. If products marked or presented in violation of the law have already been further distributed, the obligation to cease further distribution regularly also includes the recall of products already delivered.

(…)

A positive obligation on the injunction debtor to act does not presuppose that the decision formula already indicates that the injunction debtor is also obliged to act actively. Duty to act to be determined by way of interpretation, the titled duty to cease and desist only supplementary duties to act need not be separately titled.

A title based solely on an omission according to its decision formula may also be to be interpreted in this way, because the reasons for the decision and the grounds for the application or action must be taken into account as admissible interpretation material for this purpose. Such a title may therefore contain the obligation to do positively, which is enforceable according to § 890 ZPO, even if this has not been expressly stated in its decision formula.

The acceptance of a positive duty to act on the basis of the injunction does not violate - as the intervener of the debtor believes - the requirement of certainty regulated in Article 103 II of the Basic Law. The principle of certainty in Article 103 of the Basic Law applies solely to measures of state coercion, but not to proceedings for the enforcement of injunctive relief. Although this provides for means of order similar to criminal law, it is not based on the state's monopoly on the use of force, but serves to enforce obligations under private law between private individuals. The determinability of the scope of the title, also by way of interpretation, satisfies the constitutional requirements for a specific requirement of determinacy under enforcement law. The criminal nature of the means of order and the resulting burden on the debtor already takes account of the fault requirement existing there. Accordingly, a sanction can only be imposed if the debtor is at fault for the infringement.

If, as a result of the interpretation of the instrument of omission, the debtor is obliged to take measures by positive action to eliminate the ongoing state of disruption and to influence third parties, it does not matter whether he has corresponding claims against the third parties in question. The debtor of an injunctive relief is not responsible for the independent actions of third parties. However, this does not release him, within the framework of his positive duty to act as determined by interpretation, from exerting influence on third parties whose actions are of economic benefit to him and for whom he must seriously reckon with - possibly further - infringements. The debtor is therefore obliged to exert influence on such persons to the extent possible and reasonable. With regard to its possibilities of influencing the third party, it is only important whether the debtor has legal or actual possibilities of influencing the conduct of third parties. It is therefore sufficient for him to be able to make an actual impact.

The debtor's obligation is not only justified but also limited by what is possible and reasonable for him. On the one hand, the debtor may not remain inactive if and insofar as the interpretation of the instrument of omission results in an obligation to act positively. On the other hand, however, he does not have to do anything that does nothing to prevent further injuries and is therefore not necessary, nor does he have to take measures to prevent or rectify faults that are disproportionately detrimental to his commercial activity and therefore unreasonable for him - for example towards his customers with whom he has an ongoing business relationshi

(…)
A positive obligation on the injunction debtor to act does not presuppose that the decision formula already indicates that the injunction debtor is also obliged to act actively. Duty to act to be determined by way of interpretation, the titled duty to cease and desist only supplementary duties to act need not be separately titled.
A title based solely on an omission according to its decision formula may also be to be interpreted in this way, because the reasons for the decision and the grounds for the application or action must be taken into account as admissible interpretation material for this purpose. Such a title may therefore contain the obligation to do positively, which is enforceable according to § 890 ZPO, even if this has not been expressly stated in its decision formula.
The acceptance of a positive duty to act on the basis of the injunction does not violate - as the intervener of the debtor believes - the requirement of certainty regulated in Article 103 II of the Basic Law. The principle of certainty in Article 103 of the Basic Law applies solely to measures of state coercion, but not to proceedings for the enforcement of injunctive relief. Although this provides for means of order similar to criminal law, it is not based on the state's monopoly on the use of force, but serves to enforce obligations under private law between private individuals. The determinability of the scope of the title, also by way of interpretation, satisfies the constitutional requirements for a specific requirement of determinacy under enforcement law. The criminal nature of the means of order and the resulting burden on the debtor already takes account of the fault requirement existing there. Accordingly, a sanction can only be imposed if the debtor is at fault for the infringement.
If, as a result of the interpretation of the instrument of omission, the debtor is obliged to take measures by positive action to eliminate the ongoing state of disruption and to influence third parties, it does not matter whether he has corresponding claims against the third parties in question. The debtor of an injunctive relief is not responsible for the independent actions of third parties. However, this does not release him, within the framework of his positive duty to act as determined by interpretation, from exerting influence on third parties whose actions are of economic benefit to him and for whom he must seriously reckon with - possibly further - infringements. The debtor is therefore obliged to exert influence on such persons to the extent possible and reasonable. With regard to its possibilities of influencing the third party, it is only important whether the debtor has legal or actual possibilities of influencing the conduct of third parties. It is therefore sufficient for him to be able to make an actual impact.
The debtor's obligation is not only justified but also limited by what is possible and reasonable for him. On the one hand, the debtor may not remain inactive if and insofar as the interpretation of the instrument of omission results in an obligation to act positively. On the other hand, however, he does not have to do anything that does nothing to prevent further injuries and is therefore not necessary, nor does he have to take measures to prevent or rectify faults that are disproportionately detrimental to his commercial activity and therefore unreasonable for him - for example towards his customers with whom he has an ongoing business relationship."

IP Law Summer School returns to beautiful Cambridge

Downing College
Our friends at KNect 365 wish to let IPKat readers know that, also this year, the IP Law Summer School returns to Cambridge for 4+1 days (13 – 17 August; the first day, devoted to fundamentals, being separately bookable) of discussions and learning in the stunning premises of Downing College.

The agenda includes sessions devoted to substantial IP issues, contractual and corporate matters, policy issues, and enforcement of IP rights.

The other good news is that IPKat readers enjoy a 15% discount on the registration fee, by using the following discount code: FKW82799IPKE.

Click here for further information and registration.

Tuesday, 24 April 2018

Event Report: Women, Coding & the Future

With World IP Day just around the corner on a timely and fantastic theme of "Powering change: Women in innovation and creativity", two weeks ago Bird & Bird hosted the London Chapter of ChIPs' event  "Women, Coding and the Future".  The AmeriKat was sadly unable to attend, but Zoe Fuller (Bird & Bird) reports on the evening:   
"Following the successful launch of the London Chapter of the ChIPs network last year, the eagerly anticipated "Women, Coding and the Future" event took place yesterday evening.  
Amali in action 
Headlining this event was Amali de Alwis, CEO at Code First: Girls, a social enterprise that has taken on the challenge of tackling the thorny issue of why there are not more women in tech and entrepreneurship. Amali took us through some all too familiar statistics which highlight the low numbers of women in these industries. In 2017, for example, female programmers and software developers made up only 3.9% of tech and telco professionals in the UK. Code First: Girls is engaging with this issue by teaching women (but not just women) to code, many of whom for free. Amali explained their 2020 campaign; teaching 20,000 women to code by 2020. Code First: Girls is well on its way to completing that challenge. As a taster of a typical coding lesson, Amali gave a practical introduction to coding principles and the internet, clarifying terms which we all use on a daily basis without really understanding what they mean and explaining how to create a website in under 10 minutes.
Anita Shaw (a patent attorney at IBM) was up next. She outlined the reasons why she chose a computer science degree rather than one in arts or medicine (because of the wide ranging career options coupled with a very tempting sponsorship offer from IBM) and described the chance opportunity which then led her down the patent attorney route. Anita shared her experiences of working in a male dominated environment and highlighted some of IBM's initiatives to improve diversity.
The evening was rounded off by a dynamic panel discussion with many questions and observations from the audience. Amali and Anita were joined on stage by Charlotte Szostek (Machine Learning Engineer/Data Scientist at Ripjar) and Sam Funnell (Adarga Ltd and co-chair of the London Chapter of ChIPs). Issues were identified, experiences shared and solutions proposed.
A lack of role models was mentioned as one particular challenge. Mentoring was generally considered to be a positive experience and need not be limited to the traditional mentoring relationship. Value can be had from both male and female mentors whilst reverse mentoring and peer-to-peer mentoring can be mutually beneficial. The availability of mentoring schemes was noted as a good resource for those who do not have ready access to a mentor.

A debate on possible reasons why the number of women in law dwindles at the senior level led to a topical discussion of gender pay gap statistics. Equality in terms of maternity and paternity leave and flexible working policies were highlighted as potential ways to help level the playing field, with one observation of a gender neutral sabbatical leave being trialed in a work place. It was noted that there seems to be an increasing trend of clients demanding diversity in the legal teams they instruct. These clients would not be fooled simply by having a diverse pitch team which then disappears as the work starts. Perhaps ultimately any improvements in diversity within law firms will be client driven, rather than internally driven.
Brainstorming and network continued with gusto over drinks and canapes.
Changing the status quo will not happen by itself. Obstacles and deterrents need to be knocked down, and the more people involved in making that happen, the better. It was both heartening and exciting to see so many like-minded people buzzing with ideas to improve prospects for women in this industry. ChIPs, and other women-led initiatives, are paving the way to change things for the better for future generations. "   
To find out more about ChIPs and to become a member click here.   To learn more about this year's World IP Day click here.  And to get involved in coding initiatives with Code First: Girls click here

No likelihood of confusion between ‘Bobo Cornet’ and ‘Ozmo Cornet’, says the General Court

In November 2013 the intervener before the General Court (GC), Elka Zaherieva, filed for an application for registration of an EU trade mark (EUTM) for the following figurative sign:


The application was for a trade mark for goods and services in Classes 29 (milk beverages, milk products), 30 (Frozen Yoghurt, confectionary ices), and 32 (Non-alcoholic beverages, milk, chocolate and peanut beverages) of the Nice Classification.

The application was published in January 2014 and was subsequently opposed by Şölen Çikolata Gıda Sanayi ve Ticaret (the party to the GC proceedings) pursuant to what is now Article 46 of Regulation 2017/1001 (EUTMR). 

Based on what is currently Article 8(1)(b) EUTMR, the opposition claimed that the applicant's sign conflicted with the earlier international registration for goods and services in Class 30 (Cocoa, cakes, chocolates, chocolate creams, cakes with cocoa milk and chocolate cream) of the Nice Classification:


The EUIPO Opposition Division rejected the opposition in its entirety. The decision was subsequently appealed to the Fourth Board of Appeal, which also dismissed the appeal.

The decision of the Fourth Board of Appeal

The Fourth Board of Appeal took in fact the view that the signs are visually dissimilar (notwithstanding the word ‘cornet’), in view of the dominance of the figurative elements in the mark applied for, and in particular the element of the rabbit which constitutes a “striking feature” of the applicant’s sign. The mere fact that the word ‘bobo’ and ‘ozmo’ share the same vowel ‘o’ does not make the two marks similar. In addition, the initial element ‘ozmo’ of the earlier international registration and the initial element ‘bobo’ of the mark applied for are likely to have had more of an impact on the overall visual and phonetic impression than the final element ‘cornet’. 

The General Court’s installment

The holder of the OZMO CORNET trade mark appealed the decision to the General Court (GC) on two grounds:

i)        First, holding that the Fourth Board of Appeal had infringed Article 8 (1)(b) (likelihood of confusion in relation to relative grounds for refusal) EUTMR, and
ii)       Secondly, alleging infringement of Article 94 EUTMR, in particular breach of the duty to state reasons and breach of the duty of diligence.

The GC issued its decision (T-648/16) a few days ago.

The present analysis will only focus on the first point, i.e. the likelihood of confusion, as this appears to me the most interesting aspect of the decision.

Likelihood of confusion between BOBO CORNET and OZMO CORNET?

The holder of the earlier trade mark claimed that the Board had erred in its comparison of: (1) the goods; (2) the signs (visually, phonetically and conceptually); as well as (3) likelihood of confusion between them.

The relevant public

The GC started by noting that the goods in question are everyday consumer goods directed at the general public with an average level of attention.

Comparison of the signs

In order to assess the similarity of the goods the Court conducted a global assessment of the signs, bearing in mind their distinctive and dominant components. The average consumer normally perceives a sign as a whole, rather than in its individual components. Only if other components are negligible would the assessment of similarity be carried out solely on the basis of the dominant elements.  

(1) The visual comparison

According to the holder of the earlier trade mark, the dominant element in the mark applied for consists of the terms ‘bobo’ and ‘cornet’ and not the image of the rabbit.

The Court did not accept this and found that the Fourth Board of Appeal had not erred when it found that the representation of the rabbit holding an ice cream cornet is the dominant feature. This is because that representation occupies two thirds of the mark applied for, and therefore constitutes a particularly striking feature of that sign.  

Furthermore, the verbal elements ‘bobo’ and ‘cornet’ framed by a thin black line depicting a cloud in the upper left-hand corner, even though not insignificant, occupy a less prominent position than does the representation of the rabbit holding the ice cream cornet. Among those verbal elements, the initial element ‘bobo’ has a more visual impact than the final element ‘cornet’, given the larger size of its letters in relation to those of the word ‘cornet’.

Therefore, the Fourth Board of Appeal was correct in finding that the initial element ‘ozmo’ is likely to have a greater visual impact than the element ‘cornet’. The word ‘ozmo’ is written in larger letters than the word ‘cornet’ and is framed by a thin black line. 

(2) The phonetic comparison

Also with regard to this point, the Fourth Board of Appeal did not err in finding that the words ‘bobo’ and ‘ozmo’ will have a greater phonetic impact amongst the relevant consumers than the word ‘cornet’. This is because the two words considered together constitute a relatively long combination and it is therefore likely that the relevant public will pronounce only the first word of each of them when purchasing the goods designated by those combinations. This is especially the case for the part of the relevant public with an understanding of the meaning of the word ‘cornet’ which will perceive that word as having a descriptive character and will therefore refrain from pronouncing it when making the relevant purchase.

Kat cornet
(3) The conceptual comparison

The assessment of the degree of conceptual similarity involves consideration of the distinctive and potentially descriptive character of the common elements of the sign at issue in light of the goods or services in question.

In the present case, regard must be taken of the presence of the rabbit holding a cornet which assumes a dominant character in the mark applied for, the absence of any comparable figurative element in the earlier international registration, and the absence of any concept conveyed by the words ‘bobo’ and ‘ozmo’, respectively.

The GC observed that as for the word ‘cornet’, it is correct that the verbal element is present in the two signs. However, that word is descriptive and, as such, is a non-distinctive element. Having regard to the absence of any concept conveyed by the words ‘bobo’ and ‘ozmo’,  and to the presence of a dominant figurative element in the mark applied for – the mere circumstance that that verbal element is present in the two signs at issue cannot in itself introduce even a low degree of conceptual similarity. Therefore there is no conceptual similarity.

Global assessment of the likelihood of confusion

According to settled case law, the existence of a likelihood of confusion presupposes both that the mark applied for and the earlier international registration are identical or similar. Furthermore, the goods or services that are the subject of the application for registration ought to be identical or similar to those in respect of which the earlier international registration has been registered. These conditions are also cumulative (Gateway v OHIM, C57/08 P).

In light of the above , the dominant character of the rabbit holding the cornet in the mark applied for, the visual and phonetic difference between the two marks in question, the words ‘bobo’ in the mark applied for and ‘ozmo’ in the earlier registered mark, and the secondary character of the word ‘cornet’ having regard to its position, size and descriptive character,  the GC found that the Fourth Board of Appeal was correct in finding that there is no likelihood of confusion between the two marks. Hence, registration of the BOBO CORNET sign would not conflict with the earlier OZMO CORNET registration.

Monday, 23 April 2018

BREAKING: 9th Circuit rules that Naruto has no standing under US Copyright Act

Naruto 😍
If you thought that the infamous Monkey Selfie case was over, well, you were ... wrong!

A few weeks ago IP enthusiasts were in fact 'thrilled' to learn that - despite the out-of-court settlement agreement concluded in 2017 - the US Court of Appeals for the 9th Circuit would rule anyway on the case brought by PETA (as next friend) against now economically struggling wildlife photographer David Slater over copyright ownership of a series of selfies taken by Celebs crested macaque Naruto.


Today, the Court has ruled that 'an animal ha[s] constitutional standing [Article III standing] but lack[s] statutory standing to claim copyright infringement of photographs known as the "Monkey Selfies."' 


More specifically, the panel confirmed that the "[US] Copyright Act does not expressly authorize animals to file copyright infringement suits."


Background



But what happened before today's ruling? Here's a quick recap.

In 2014 the Wikimedia Foundation rejected Slater’s takedown request to remove from a Wikipedia page one of the photographs taken by Naruto. The Foundation did so on grounds that no copyright could subsist in a work created by an animal. It also concluded that the argument by Slater that he had befriended a group of macaques and set up the photographic equipment, so that they would use it and possibly take pictures (with him editing the resulting photographs) held no value.

In a separate lawsuit against Slater, PETA – admittedly on behalf of Naruto (as 'next friend') – sought a decision that would acknowledge that works created by an animal hold a valid copyright, of which the animal, as author, is the owner. More specifically, PETA alleged that the defendants had infringed Naruto’s copyright pursuant to sections 106 and 501 of the US Copyright Act, by displaying, advertising, reproducing, offering for sale, and selling copies of the Monkey Selfies.

In 2016 the US District Court for the Northern District of California dismissed the action, on grounds that “the [US] Copyright Act does not confer standing upon animals like Naruto”.The court recalled that the notions of ‘works of authorship’ and ‘author’ are not defined in the statute. This was a deliberate choice on the side of the legislature, intended “to provide for some flexibility.” 

However, the court referred to a case decided in the area of environmental law: CetaceanThere, the Cetacean Community, created by the “self-appointed attorney for all of the world’s whales, porpoises, and dolphins,” had brought an action on behalf of the Cetaceans for violations of the Endangered Species Act, the Marine Mammal Protection Act, and the National Environmental Policy Act. The 9th Circuit examined the language of each statute and excluded that US Congress had wished to confer standing on animals. The court concluded that: “if Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, have said so plainly.” 

According to District Court hearing the Monkey Selfie case, a similar conclusion could be reached in relation to the US Copyright Act. Decisions of the US Supreme Court and 9th Circuit have referred to ‘persons’ or ‘human beings’ when addressing issues of authorship. In addition, in its Compendium of Copyright Practices, the US Copyright Office clearly states that:

“To qualify as a work of “authorship” a work must be created by a human being. See Burrow-Giles Lithographic Co., 111 U.S. at 58. Works that do not satisfy this requirement are not copyrightable. The Office will not register works produced by nature, animals, or plants.”

Kat Selfie
The Compendium specifically refers to “[a] photograph taken by a monkey” as an instance of work that cannot be protected. Courts take into consideration the US Copyright Office’s interpretation in appropriate circumstances, and in this case the District Court also referred to the Compendium to conclude that Naruto could not be the author of a protectable work.

Further to an appeal filed by PETA before the 9th Circuit, the case was (initially) settled out of court. 

Today's ruling

In today's ruling Circuit Judge Bea questioned, first of all, PETA's assertion of its 'next friend' status to represent claims made for Naruto, also because an animal cannot be represented by a 'next friend'. Concluding otherwise would conflict with Cetacean, in which the 9th Circuit held that a group of cetaceans could demonstrate Article III standing. Hence, Naruto's Article III standing would not depend on PETA's sufficiency as a guardian or as a 'next friend'.

This said, Circuit Judge Bea turned to consideration of Naruto's standing under the Copyright Act, and concluded that "[s]everal provisions of the Copyright Act ... persuade us against the conclusion that animals have statutory standing to sue under the Copyright Act." Among other things, the judge referred to the fact that the Act:
  • Allows the children (whether legitimate or not) of the author to inherit certain rights;
  • The author's widow/widower owns the whole of the author's entire termination interests, unless there are surviving children/grandchildren (in which case he/she would own half).
"The terms 'children', 'grandchildren', 'legitimate', 'widow', and 'widower' all imply humanity and necessarily exclude animals that do not marry and do not have heirs entitled to property by law.", wrote the Court.

Comment

The conclusion is not particularly surprising. While the Monkey Selfie case might seem like an 'unusual' one, it raises important issues that will likely become more sensitive in the foreseeable future. 

The question of non-human authorship and ownership of copyright in works created by non-humans is not really (or just) about whether a monkey can be the owner of copyright in the photographs that it takes, but whether increasing sophisticated technologies, eg under the umbrella of artificial intelligence, would (and should) result in the broadening of the understanding of what (rather than who) an author is. 

If you are wondering what artificial intelligence is already doing in the creative field, you can listen to this or take a look at this.

Never Too Late: if you missed the IPKat last week!

The 190th edition of Never Too Late is here to help you with your catch-up of everything on IPKat over the last couple of weeks (2nd-15th April)! Highlights include an event report on autonomous cars, user-rights relating to the "first Instagram masterpiece" and a book review of a mystery novel written by a former patent attorney. 

Copyright

Guest Kat Nedim Malovic asks whether an ISP can be required to hand over its subscribers' IP addresses in online copyright infringement cases: Swedish Patents and Market Court of Appeal says that an ISP may not be required to hand over information about subscribers’ IP addressesThe Swedish Patents and Market Court of Appeal ruled that this might not always be the case, in contrast to the decision at first instance and other Swedish courts' recent decisions (see here). The case concerns UK-based Copyright Management Services (CMS) and the Swedish internet service provider Tele2. 

Kat Eleonora Rosati summarises her contribution to the 26th Fordham IP Conference, one of the most notable annual events for the IP enthusiasts: The EU copyright reform and the legacy of CJEU case law: lip service?


Enjoying the spring sunshine

In Rich writer, poor writerAsia Correspondent Tian Lu explores the meaning of "IP-able" in China, i.e. the films and television plays adapted from popular copyright works such as animations, novels, games and songs. Tian analyses the income disparity between "pure-literary" writers and screenwriters, a situation exacerbated by the relatively low damages awarded by the Chinese courts for copyright infringement of literary works. 


Patents

InternKat Rose Hughes turns her attention to the topics of claim interpretation and infringement in a recent decision by the UK Court of Appeal: Regeneron v Kymab - Part II: Interpretation and Infringement. Also, here is Rose’s previous analysis of the court’s conclusions on sufficiency in the same judgement.


Social Media

Departing from the heated topics currently involving Facebook, privacy and data protection, David Serras Pereira (SPAutores) reflects on the social media giant’s global music strategy and its investment in music-related activities: Facebook and music rights: the “not-so-heard-not-GDPR-related-news”. Will it be the new music global service?

A social media project created by an Argentinian artist, Amalia Ulman, may be “the first Instagram masterpiece”, a “sensation of contemporary art”, but what light does the user-rights context shed about this “experiment”? Kat Neil Wilkof explains: Are viewers of on-line contents entitled to the truth? “Excellences & Perfections” and the saga of Amalia Ulman

Event Reports - Autonomous Vehicles

Guest Kat Luke Maunder (Bristows) reports on the British Computer Society event on whether we are ready for autonomous vehicles: What is the final destination of autonomous vehicles? Luke provides an overview of the talks, covering the story of self-driving cars to-date, the current situation, predictions for the future, and the practical and ethical issues associated with autonomous vehicles. 


Does this car have a mind of its own?
GuestKat Rosie Burbidge shares her impressions from a panel discussion, More Than Just a Game Conference London IV. The focus was on a wide variety of perspectives on IP and interactive entertainment from the publisher and developer points of view,  from both  the UK and US legal perspectives: More than just a game - IP and interactive entertainment.

Trade Secrets

Kat friends Sture Rygaard and Emil Jurcenoks (Plesner) report on the recent adoption of The Danish Act on Trade Secrets: The Danish Act on Trade Secrets has now been adopted. The new act is a very literal implementation of the EU Trade Secrets Directive ("Directive"). Sture and Emil provide an outline of the parts of the act of particular importance to Denmark, including the provisions for damages and criminal sanctions.


Book Review

Kat Neil Wilkof reviews a new mystery novel, entitled “The Devil’s Dice”, written by  former patent attorney Roz Watkins, together with an interview with the author as she reflects on migrating from patent law to fiction: From IP practioner to murder mystery author: Roz Watkins and "The Devil's Dice" (a pity about that patent attorney in the opening scene).


*This is a joint post by InternKats Ieva and Rose*

PREVIOUSLY ON NEVER TOO LATE

Never Too Late 189 [week ending 1 April]  It is the year 2050, and the last trademark litigator has retired | RETROMARK: A year of trade marks - Part 1: Costs after Cartier | Right of publicity not a right to control one's own image by censoring disagreeable portrayals, says appeals court in de Havilland case | EU Commission publishes paper on consequences of Brexit on copyright | Brexit 'cliff-edges' - Alliance for Intellectual Property paper | Del Toro and The Shape of a Lawsuit | Copyright, exceptions and cultural institutions: Australia is listening! | Google cannot hide behind its algorithms, German court finds | Does the InfoSoc Directive envisage digital exhaustion? Questions in the Tom Kabinet CJEU reference finalized (at last) | Court of Appeal, following EPO, reverses Carr J in Regeneron v Kymab dispute | Regeneron v Kymab - Part I: Sufficiency | How do you protect patents from judicial and expert hindsight? | Weekly Roundups: Monday Miscellany

Never Too Late 188 [week ending 25 March]  Shenzhen court issues written judgment in Huawei v Samsung case | Controversy looming for this year's pre-EQE | Courts continue to struggle to find appropriate forms of injunctive relief when social media is involved: Frank Industries versus Nike | Investment disputes, trademarks and licences, and ICSID tribunals-"Bridgestone v. Panama| Will trade mark law stop Marine Le Pen's new campaign? | Eventt Report: INTA Designs Conference 2018 | French court finds appropriation of photograph not sufficiently 'transformative' and therefore infringing | Swedish Supreme Court says that painting based on photograph is new and independent creation and hence...non-infringing | The 5 Pointz case: a response (on the risk of cultural gatekeeping in copyright) | National and EU text and data mining exceptions: room for coexistence? | Book Reviexs: Research Handbooks on Copyright Law and History of Copyright Law | Book Review: Certification and Collective Marks | Weekly Roundups: Around the IP Blogs!

Never Too Late 187 [week ending 18 March] Irish Government proposes introduction of Irish text and data mining exception | Infighting at Nigeria’s main collecting society – Powers of the sector regulator | Unlawful street art used in a promotional campaign: H&M withdraws its complaint | General Court confirms that ‘La Mafia se sienta a la mesa’ cannot be a trade mark on public policy grounds | Nando's v Fernando's: Food for thought | Spanish Supreme Court puts an end to a “sui generis” case concerning database “sui generis” right |  The protection of genetic resources, traditional resources and folklore 35 meetings later… | Book review: ‘Rethinking Intellectual Property – Balancing Conflicts of Interest in the Constitutional Paradigm’ | Friday Fantasies

Never Too Late 186 [week ending 11 March]
 The best and the brightest: key UK and EU design decisions from 2017 | German design law on the brink of change following yesterday's CJEU decision in DOCERAM v CeramTec | Greece: new notice and take down administrative mechanism for online copyright cases now in force | A new type of authors' organization: an exclusive interview with the Executive Director of Authors Alliance | Can Mattel be prevented from making its own Frida Kahlo Barbie doll? | The 5 Pointz case: Should works of art be protected from destruction? | 9th Circuit ‘slam-dunks’ claim of copyright infringement by Nike photograph of Michael Jordan and ‘Jumpman’ logo | Gutenberg.org loses to German publisher and is found liable for damages | AIPPI UK Event Report: Registration, notice and infringement - is certainty an illusion? | L'Oréal v RN Ventures: exclusive licence registration and costs recovery | Eighth Granted Petition for Review | In Memoriam Trevor Baylis: the life-saving wind-up radio and the precarious lot of the sole inventor


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