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Yearly Archives: 2013
We want to be guinea pigs too
Following concerns that the strict patent infringement tests applied by the Courts in the UK are driving lucrative clinical trials overseas, the UK government has now concluded a review of the statute that would allow for a broader ‘Bolar’ exemption to enter UK law.
Power in Numbers – Trade Mark Squatters in China
Trade Mark squatting is big business in China and is becoming more and more common. The new target appears to be up and coming European brands. It would appear that as soon as a mark becomes the slightest bit known in the UK, throughout Europe or the US, the marks are being filed as trade mark applications in China by opportunistic third parties known as trade mark squatters.
It would also seem that these third parties are not just trying to reap the rewards of just one trade mark either. It is becoming more common for trade mark squatters (which are now large ‘squatting’ companies) to file hundreds of well-known or well-publicised up and coming brands belonging to foreign owners.
Are the days of a section 11(1) TMA defence numbered? (TMA – Trade Marks Act 1994)
“A registered trade mark is not infringed by use of another registered trade mark for goods or services for which the latter is registered (…)”(s.11(1)). This section of the UK Trade Marks Act 1994 (also referred to as “registered mark defence”) has generally been the basis for advising clients to obtain a UK trade mark registration in addition to a Community Trade Mark (‘CTM’) registration.
UK trade mark proprietors have been able to rely on the registered mark defence mentioned above as a prima facie defence to trade mark infringement proceedings. Prior to the EU decision below, the validity of a UK registered mark would have to be challenged first before infringement proceedings commenced. It would appear from the EUCJ ruling below that there may be a movement away from this defence.
Transitional provisions and the competence of the UPC: A response to Amerikat
Over at IPKat, Amerikat has been looking at the transitional provisions of the Unified Patent Court (UPC) Agreement and considering an interesting question. In this post, Amerikat has been considering Article 83, which gives a patentee the possibility to opt out of the ‘exclusive competence’ of the UPC if the patent was filed before the end of the transitional period, and to opt back in again at any time.
In brief, her question is this: does opting out of the ‘exclusive competence’ of the UPC still leave the UPC with non-exclusive competence, or does it leave the UPC with no competence at all (pun entirely unintentional)?
At IPCopy, we threw around some thoughts on this when we first noted quite how long the UK courts could still have competence as a result of Article 83 (Draft Article 58 back when we posted this), and we thought this was an opportunity to share them with you, and Amerikat! (more…)
Unitary Patent Package – UPC Agreement – 24 signatures received
After a reasonable delay the signing ceremony for the agreement on the unified patent court took place today (19 February 2013).
As alluded to in the press release a total of 24 member states signed the agreement, including Italy.
19th February 2013 is UPC signing day!
As announced here the signing ceremony for the agreement on the unified patent court will take place on 19 February 2013 (on or around 2.15 Central European time).
Control your excitement readers!
The press release for the signing ceremony also suggests that we will be able to live stream the entire event (at this location).
The IP Federation, the Minister and the European Scrutiny Committee
The IP Federation represents the views of UK Industry and, as can be seen from the front page of their website, has a pretty impressive list of members. As announced here the IP Federation has written to the UK Minister for IP (Viscount Younger of Leckie, Parliamentary Under-Secretary of State for Intellectual Property in the Department for Business, Innovation and Skills) with a request for an economic analysis to be performed on the effect on the UK economy of the unitary patent system before ratification of the unified patent court agreement takes place.
It will be interesting to see what, if any, response the IP Federation get from Lord Younger. On a related subject we note that the European scrutiny committee has recently cleared the Draft Agreement on a Unified Patent Court and draft Statute (see here for details).
Unitary Patent Package – Rules of Procedure for the Unified Patent Court (14th Draft)
As noted in our tweet last week the 14th draft of the Rules of Procedure of the Unified Patent Court have appeared online (a copy can be found here). The document runs to almost 150 pages and 382 rules so it’s something of an early Christmas present for insomniacs.
The release of the 14th draft is expected to shortly be followed by the public consultation exercise on the rules of procedure. IPcopy understands that the window for public comments could be as short as one month and we will let you know as soon as we hear more. It is noted that page 2 of the 14th draft states that it is the aim of the Drafting Committee to complete the draft rules within three months of the signature of the Agreement (which is expected to happen on 19th February).
Falling out over sweets?
Haribo v Lindt – Gold Bear vs Gold Foiled Teddy
On 18 December 2012, the Regional Court of Cologne decided that Swiss Confectioner Lindt’s gold foiled teddy amounted to a visual representation of German sweet maker Haribo’s famous Gold Bear.
The court held that the visual similarities would cause connotations with Haribo’s bears and upheld Haribo’s claim against the distribution of Lindt’s bears in Germany.
In the case, Haribo argued that its bears and its word trade mark for ‘Goldbär’ (German for gold bear) was known to 95% of the relevant German consumer. Lindt argued that the gold foil and red ribbon followed the form used on its chocolate bunnies and invited the court to find that the competing products did not look similar and that consumers would not be confused.
However, the courts agreed with Haribo’s view and said that consumers would refer to Lindt’s bear as the ‘gold bear’ due to its visual appearance. They held that this would result in a dilution of Haribo’s rights.
The courts have allowed an appeal on the basis that there has so far been no ruling by the German Federal Supreme Court on the question of a conflict between a word mark and a three-dimensional product design.
Lindt have appealed the decision to a higher court and a decision is expected soon.
Azhar Sadique 8 February 2013
Unitary Patent Package – The Ratification Game (The UK completes its ratification formalities)
Update (26 April 2018)
According to the website of the Council of the European Union (and just about every other official IP channel), the UK deposited its instrument of ratification (on 26 April 2018) to become the 16th country to complete its ratification formalities. The UK joins Latvia, Lithuania, Estonia, Italy, the Netherlands, Bulgaria, Finland, Portugal, Luxembourg, Malta, Denmark, Belgium, Sweden, France and Austria as one of the sixteen countries who have completed their ratification processes.
The unitary patent system requires 13 countries to ratify, including the UK, France and Germany. However, the German Constitutional Court challenge has thrown the timescale and the long term future of the unitary patent system into doubt.
There are now enough countries to have ratified the unified patent court agreement that the system will come into effect if Germany completes its own ratification procedures and sufficient approvals to the PPA are obtained.
Now that the UK has completed all of the formalities we have updated our ratification infographic (for an answer to the question “What’s up with this infographic?“, please see the bottom of the post!”).
IPcopy 