16 January 2014

Net Neutrality: the very recent development in the U.S.

Image: Net Neutrality News Tag Cloud by Sean Weigold Ferguson on Flickr

Two days ago the US Court of Appeals for the District of Columbia delivered its long-awaited decision in which it found that, in an attempt to regulate the Internet service providers, the Federal Communications Commission (FCC) had overstepped its authority.

The New York Times has published a brilliant, concise, easily accessible and intelligible article on the matter which I strongly advise you to read, in order to grasp what was on stake in the case and also what its implications might be.

29 August 2013

Software Remains Patentable in New Zealand

Image: Kiwi Sign by Mrs. Gemstone on Flickr
Kiwi Sign

Yesterday’s passage of New Zealand’s new Patents Acts sparked a fire of media headlines reading like „New Zealand bans software patents“ (here, here and here).

While I hate being the messenger of bad news, I think I should clarify the issue at least for the readers of this blog, since the information above is simply incorrect, if not misleading.

The truth is that software or computer programs, as the kiwi’s patents law refers to it, remains patentable.

According to this source, the all-dominant and newly introduced Article 10a reads as follows:

(1) A computer program is not an invention and not a manner of manufacture for the purposes of this Act.
(2) Subsection (1) prevents anything from being an invention or a manner of manufacture for the purposes of this Act only to the extent that a claim in a patent or an application relates to a computer program as such.

(3) A claim in a patent or an application relates to a computer program as such if the actual contribution made by the alleged invention lies solely in it being a computer program.

When reading this language, anyone familiar with the European Patent Convention will commemorate the text of its article 52 stating that

(1) European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.
(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1
(a) discoveries, scientific theories and mathematical methods;
(b) aesthetic creations;
(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
(d) presentations of information.
(3) Paragraph 2 shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject‑matter or activities as such.

While it is obvious that New Zealand has elected to adopt the European „as such“ exclusion, one might ask what impact this could have on the patentability of computer programs Down Under?

This blogger is of the humble opinion that New Zealand’s judicature could follow the view of the European Patent Office (EPO), pursuant to which claims for an invention cannot be excluded for being a „program for a computer as such“, if they contain a technical or physical feature such as a computer device or even a piece of paper.

In other words, software in New Zealand is a way too far from representing a non-patentable subject matter and, when assessing its patent eligibility, the local courts could apply EPO’s well established authority of the so called „any hardware approach“.

4 August 2013

Bulgaria’s ambassadors receive ban to use Facebook

Image: Borys Tarasuk and Kristian Vigenin together with Gerben-Jan Gerbandy
by European Parliament on Flickr

Borys Tarasuk and Kristian Vigenin together with Gerben-Jan Gerbandy

The smiling gentleman to the right is Kristian Vigenin – Bulgaria’s current minister of foreign affairs.

Recent media reports say he has directed all ambassadors of the small eastern European republic to refrain from using the most popular social network.

“Why is that?” one might ask and the answer is quite simple – for the last 50 days Bulgaria has been facing the largest anti-government protest since January 1997 and statements posted on Facebook show that some of the ambassadors side rather with the #ДАНСwithme participants than with their employer.

In other words, Vigenin’s instruction is nothing but a gag order on Bulgaria’s diplomats abroad and speaks volumes about this government’s preference to deal with plurailty of opinion and public criticism.

6 November 2012

Pussy Riot Trade Mark Prepares to Enter the Market

Image: Grafite para Pussy Riot by Cayoo via Wikimedia Commons
Grafite para Pussy Riot

During the trial of the Russian punk rock band Pussy Riot there were voices of concern that the three young ladies would not really care for their political message, but would rather be looking for cheap popularity, which they eventually could transform into cash.

The information I recently came across (here in English as well as here, here and here in Russian) show that there have indeed been

aspirations to exploit the current media hype

although the latter should not be attributed to the meanwhile jailed musicians, but to a company related to their lawyer Mark Feygin.

According to the quoted sources, the OOO Kinokompania WEB-BIO has applied for the registration of the trade mark “Pussy Riot” not only with the Russian Patent Office Rospatent, but also with Office for Harmonisation in the Internal Market (OHIM), which administers the so called Community Trade Marks.

Unfortunately, one could not reasonably accuse Rospatent of being particularly transparent, so the only trade mark  application accessible online is the one with OHIM (filed under number 011 182 367).

The latter provides us with the basic information about

the large number of classes applied for

(3, 9, 10, 13, 14, 16, 18, 25, 26, 28, 32, 33, 34, 35, 38, 41, 42, 45) evidencing for the strong entrepreneurial vigour with which Web-BIO is obviously intending to enter the market.

Weird trade mark applications and registrations are not unusual, when it comes to Russia.

During the last couple of years market participants managed to successfully register brands such as “Christmas” and “New Year” for banking services (read more here and here) as well as “Anna Chapman” for clothing and beverages (read more here).

As I am particularly interested in Russian trade marks, I will follow also the story of the Pussy Riot brand, thus – stay tuned.

26 October 2012

The Apple of Temptation

Image: apple bite by owaief89 on Flickr
apple bite

The popular Christian tradition holds that the serpent tempted Adam and Eve to eat an apple from the forbidden tree in the Garden of Eden and as a result the first human beings got expelled from there.

According to Wikipedia,

temptation is

the desire to perform an action that one may enjoy immediately or in the short term but will probably later regret for various reasons: legal, social, psychological (including feeling guilt), health-related, economic, etc.

Having read today’s Forbes’ article What Apple Gets Wrong In Its Samsung Apology, I could think of nothing, but temptation.

The thing is that Apple had claimed that the design of Samsung’s Galaxy Tab infringed upon Apple’s design in the iPad.

For that, the Cupertino company went before the English High Court, but suffered a defeat. It then made another attempt – this time before the Court of Appeal – however, only to reap another judicial loss.

Owing to these unfortunate circumstances,

Apple were ordered to post a statement

on their website to inform the public that Samsung’s design had in fact not infringed upon the design incorporated in the iPad.

The text they had to use read as follows:

“On 9th July 2012 the High Court of Justice of England and Wales ruled that Samsung Electronic (UK) Limited’s Galaxy Tablet Computers, namely the Galaxy Tab 10.1, Tab 8.9 and Tab 7.7 do not infringe Apple’s registered design No. 0000181607-0001. A copy of the full judgment of the High court is available on the following link [link given].
That Judgment has effect throughout the European Union and was upheld by the Court of Appeal on ….. A copy of the Court of Appeal’s judgment is available on the following link […]. There is no injunction in respect of the registered design in force anywhere in Europe.”

Instead, their version is reading as follows:
(click-in to enlarge)

While this is, strictly speaking, not exactly what their Lordships did prescribe, it is likewise not untrue.

The problem with this statement, however, is

that its authors have drafted it in a manner that tempts the readers to side with Apple, rather than to provide them with the information on the lawsuit’s outcome.

This is duplicity, which Apple (like the biblical serpent) might at a later stage bitterly regret.

23 May 2012

Bulgaria´s Competition Watchdog Says Misappropriation of Images is Passing Off

This is the title of a blog post I wrote for The Reguligence Website, which is my newly launched professional website.

I suggest you take a look at it, should you care to know about the role of Bulgaria’s Commission on Protection of Competition and why it is important also in terms of intellectual property protection.

25 April 2012

Bulgarian TV Station Accused Of Censorship

Some two weeks ago, bTV which is held to be the largest TV station in Bulgaria, broke with Global Vision, the producer of one of bTV’s most successful shows called Gospodari Na Efira (Masters of the Airwaves in English).

At breakup

Global Vision gave a press conference

in which they alleged that bTV attempted to censor the show they have been producing.

A copy of the press conference’s broadcast was uploaded onto YouTube and remained accessible – according to statuses of Facebook users – until it was taken down today.

The awkward thing

is that not only did YouTube take down the video, but they also terminated the account of the user who had previously uploaded it.

The image I have put on the top of that blog post evidences of what I am telling you.

As you can see, YouTube reasons the take-down and termination with multiple third-party notifications of

copyright infringement

obviously filed by the bTV Media Group.

That is really awkward. No, it is rather disappointing.

It is so obvious that

bTV are abusing their copyright

if any, in order to gag the guys from Global Vision and the user’s freedom of expression.

YouTube’s “Sorry about that.” underneath the notice does not make good the damage.

I would be glad to support the user, whose account has been unlawfully terminated, in filing a counter-notice and restoring both, the accessibility to the video and his subscription to YouTube’s service.

23 April 2012

Some Good News On Data Retention

Image: Data Center Tech Museum San Jose California by mrkathika on Flickr
Data Center Tech Museum San Jose California

Last week the Court of the European Union issued its long awaited ruling in the case of

Bonnier Audio vs ePhone

that represents a clash between two fundamental rights, the one being that on property, or intellectual property in particular and the other one being the right to data protection and privacy of individuals.

I will not discuss the case at length, but shall invite English readers to take a look at EDRI´s analysis and German readers to the brilliant breakdown of Dr Hans Peter Lehofer, who is a member of Austria´s Supreme Administrative Court.

There is a certain portion contained in the Bonnier ruling that caused my heart to beat faster and you can find it here

44. With regard to the main proceedings, it must be noted that the legislation at issue pursues an objective different from that pursued by Directive 2006/24. It concerns the communication of data, in civil proceedings, in order to obtain a declaration that there has been an infringement of intellectual property rights.

45. That legislation does not, therefore, fall within the material scope of Directive 2006/24.

What does that mean?

Basically, the Court opines that Directive 2002/58/EC allows the EU member states to introduce a national legislation, according to which communication data may be retained for a certain period of time and be disclosed to right holders attempting to enforce their rights.

However, such retention and disclosure needs always be subjected to a fair balance between the various applicable fundamental rights.

Conversely, the data retained under the Directive 2006/24 must not be used for the enforcement of intellectual property rights, full stop.

And that is not all

You may well remember that two years ago the German Constitutional Court smashed the country´s data retention legislation. Since then the coalition parties of the German government have been desperately struggling to agree to a new set of rules, which needs to comply with said court´s prescription.

From what I read in today´s Bild Zeitung, however, that agreement is not likely to be achieved very soon.

These are really good news, are they not?

9 February 2012

ACTA: First Debate In the Bulgarian Parliament

Image: Ministers Traikov and Rashidov talking to each other during the parliamentary hearing on ACTA. By Konstantin Pavlov – Komitata

Bulgaria was one of the 22 member states to the European Union that signed ACTA at a recently organised ceremony of the Japanese Ministry of Foreign Affairs in Tokyo.

This very act

managed to attract great interest in the public

and to cause a huge societal debate.

Following a week during which the media nearly overexploited the issue, four committees of the Bulgarian Parliament summoned the ministers Vezhdi Rashidov and Traicho Traikov to a hearing.

The hearing occurred yesterday and was well visited by right holders´ organisations as well as by representatives of the non-governmental sector and the civil society in general. Being one of the latter, I attended the hearing too.

Needless to say that while

the Bulgarian right holders´ organisations endorse ACTA

the representatives of the civil society are more or less strictly against it.

By the way, I made big efforts to broadcast the hearing on Twitter and you might want to visit my stream, in order to see who has said what in greater detail.

My impression from yesterday´s event is that GERB – Bulgaria´s currently ruling party – endorses the trade agreement too and is willing to execute the necessary parliamentary ratification.

By the same token, however, the government is aware of the

public animosity towards ACTA

and is ready to make the ratification conditional upon some reservations mainly with respect to the digital enforcement.

I hope that yesterday´s hearing was just the beginning and that many others will follow. I might get the chance to participate in a working party to deliver an expert opinion to the Parliament, but shall in any case remain focused on the matter and make information available on that blog!

25 January 2012

The Boss Of Passing Off

Two days ago I took this picture in the Serbian town of Subotica.

As you can see, a local entrepreneur is using that very famous brand to promote their own business, obviously consisting in the provision of food and drink.

The funny thing is that Hugo Boss has a trade mark registration in Serbia (albeit not for class 43) and that the Serbian Trade Mark Act protects well-known marks.

While I didn`t feel confused that the fashion brand might have something in common with a provincial restaurant in Serbia, I could not but perceive that the local entrepreneur has undertaken serious efforts to imitate both, the trade mark and the get-up of BOSS.

Thus, do you share my view that his use of the famous mark represents an unfair advantage and is detrimental to said mark`s distinctive character?