The Reguligence Weblog

6 November 2012

Pussy Riot Trade Mark Prepares to Enter the Market

Image: Grafite para Pussy Riot by Cayoo via Wikimedia Commons

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

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

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?

16 January 2012

Data Retention: EU Commission Should Facilitate Its Revocation

Image: Data Center by s_w_ellis on Flickr

About a week ago a secret communication of the European Union Commission leaked to Quintessenz – an Austrian data protection and privacy advocacy group.

The communication basically acknowledges that both, the data retention directive (DRD) and the corresponding legislation in the member states to the EU have missed their target.

Best evidence

for the above may easily be obtained by the communication itself, however you need not read it in its entirety, since I have prepared a short summary for you:

- The EU Commission complains it has received qualitative response to its questions from only 11 out of 27 member states.
- There is next to no evidence on the value of data retention in terms of public security and criminal justice. It is unclear whether data requested would be available anyway without the retention obligation and Data Protection Authorities do not know what is being kept or deleted by operators.
- While law enforcement agencies would love to know who communicated with whom, when, where and how, they can hardly make it happen, since unclear definitions in the DRD have encouraged heterogeneous interpretations of the scope so the agents find it very difficult to get this data on time for their investigations.
- The so-called ‘serious crime‘ are not defined at EU level and this leads to even more legal uncertainty – e.g. the entertainment industry calls upon the extension of DRD’s purpose to include copyright infringements, which may include illegal downloads / piracy.
- Telco operators complain about the considerable costs of compliance which are disproportionately high and hence discriminatory for smaller enterprises.

Putting it all together

it turns out that the DRD in its current form is useless because

- it does not solve legal uncertainties, but creates rather new ones;
- its scope is open to a debate and the EU Commission is keen to extend it (to cover also intellectual property infringements);
- it has failed in fulfilling its purpose – the harmonisation of the Internal Market.

Therefore,

the only reasonable step

of the EU Commission would be to immediately facilitate the revocation of the DRD!

Your thoughts?

8 December 2011

Apple’s iPad Trade Mark Bumped In China

Image: Logo de l’iPad by Rob Janoff via Wikimedia Commons

As FT.com reports, a recent Chinese court ruling prevents Apple from using “its” iPad trade mark in China.

The reason therefor

seems to lie in a dispute between Apple and the Taiwanese company Proview Electronics.
Funnily, Proview is no stranger to Apple.

Somewhere between 2000 and 2004 the Taiwanese company had registered the trade mark iPad in the EU, China, Mexico, South Korea, Singapore, Indonesia, Thailand and Vietnam, but in 2006

decided to assign

it to Apple by concluding a global agreement.

When Apple started to sell its iPad devices in mainland China, they did surprisingly encounter trade mark infringement proceedings brought by Proview Technology, the Chinese affiliate of Proview Electronics. The litigation value is said to amount to 1,6 billion USD, which is absolutely ridiculous if you bear in mind that the 2006 trade mark purchase counted some

shabby 55.000 USD

Some other reports derive Proview Technology’s combativeness from that fact that it has been insolvent for some time. The Chinese branch could thus have spotted an opportunity to cash in on Apple.

It is not Apple’s first dispute over the iPad trade mark.
The Cupertino company has so far been successful in regulating the cases arising from purported infringements and I have no doubts as to how they will end up with this particular situation.

24 November 2011

Scarlet vs SABAM: Do Neither Block, Nor Filter!

Image: …E O VENTO LEVOU (Gone With The Wind) by jonycunha on Flickr

If you have landed here, I guess you are interested to find out more about today’s ruling of the Court of Justice of the European Union in the case Scarlet Extended vs Société belge des auteurs compositeurs et éditeurs (SABAM).

Some months ago I blogged on the opinion of the Advocate General Cruz Villalón, in which he asked the Court to declare that

the EU law precludes a national court from making an order that an ISP installs a system for filtering all electronic communications.

I suggest that you read this older post of mine in order to be familiar with the background of the case.

So,

what did the Court decide?

The Court basically backed the Advocate General’s opinion and held that

1. while the right to intellectual property is indeed enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’), it has no absolute protection;

2. national authorities and courts, when undertaking measures to protect copyright holders, must strike a fair balance between the protection of copyright and (i) the protection of the fundamental rights of individuals who are affected by such measures and (ii) the protection of the freedom to conduct a business enjoyed by ISPs such as Scarlet pursuant to Article 16 of the Charter;

3. the obligation of ISPs (such as Scarlet) to install and maintain a complicated, costly and permanent filtering system in the interests of copyright holders (such as SABAM) without any limitation in time, directed at all future infringements and intended to protect not only existing works, but also future works, would well infringe both, ISPs freedom to conduct a business and the fundamental rights of that ISP’s customers, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by Articles 8 and 11 of the Charter respectively.

Consequently, the Court held that an injunction ordering an ISP to filter its network traffic in the manner of para 3 above would represent a

serious infringement of EU law

and any national court, having issued such an injunction, would disrespect the legal framework of the European Union.

In my previous blogpost I predicted that Advocate General`s opinion, if followed by the Court, would create a bomb blast to sweep away the adversaries of fundamental human rights.

Did I promise you too much? I hope not.

Anyway, although the Court did in fact light a fuse that will eventually cause an explosion, it will not be a hurting one. It will rather provide ISPs such as Scarlet with the necessary shell to protect them in the performance of their most important services to the information society.

What does this mean in practical terms?

Basically and since the ruling heavily relies on Article 15 of the Directive 2000/31/EC, an ISP is protected only to the extent that it does not filter or modify its network`s traffic. Should the ISP – be it by means of an excessive compliance or an anticipatory self-regulation – begin to filter or block traffic, it would then lose the abovementioned privilege.

So, ISPs all over the EU – do simply enjoy the new dawn of the ruling and do neither block, nor filter, because otherwise you might be gone with the wind!

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