29 January 2010

Whose iPad is it anyway?


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iPad Casephoto © 2010 Yutaka Tsutano | more info (via: Wylio)

You have certainly heard, seen or otherwise perceived (by the way who hasn’t?) that couple of days ago Apple presented its iPad to the public. However surprisingly, the fancy product name “iPad” that seems to perfectly fit into the iFamily of “iBook”, “iPod” and “iPhone”, could now enter the hostile territory of trade mark infringement.

It is funny, but the sign “iPad” has in recent years been really coveted by enterprises around the globe . So much, as some of these have undertaken trade mark registrations under different jurisdictions. For instance, the The Trade Marks and Designs Registration Office of the European Union  (OHIM) has granted the word mark “iPAD” for motors, engines and drives to Siemens and the word mark “IPAD” to the French Company STMICROELECTRONICS SA for, in particular, integrated circuits and termination lines that, however, may be also applied in cellular phones, computers and computer peripherals.

OHIM has further received an application for registration on 18 January 2010 and this is  filed by a US company named IP Application LLC. The application covers products and services classes such as computers, printed matter, toys, telecommunications and web services that just hardly fail to fit into Apple’s marketing target. It has been said in news reports that in 2009 Apple have used a proxy to file for a registration on Trinidad and Tobago in order to secure a priority date. This same Trinidadian registration is mentioned in IP Applications LLC’s application before OHIM. Any doubts why may be behind that act?

The above application, however, may cause some problems to its applicant. The Community Trade Mark Regulation states a so called relative ground for refusal where a trade mark applied for is identical with an earlier trade mark and the goods or services for which registration is sought are identical with the goods or services for which the earlier trade mark is protected. Consequently, STMICROELECTRONICS SA might successfully oppose Apple’s European registration.

As if that were not enough, the war clouds for Apple are gathering over another – much more promising – battlespace.

2002 Fujitsu came up with a handheld computer named “iPad” for use by shop assistants and has since then attempted to file for a trade mark registration with the US Patent and Trade Mark Office (USPTO).

Fujitsu iPad. Courtesy to TheRegister

Fujitsu’s application to register iPad name was deterred by an earlier filing by Magtek, an information technology security company based in Seal Beach, California, for a handheld number-encrypting device.

Magtek IPAD. Courtesy to Magtek.

The consequence was that the USPTO listed Fujitsu’s application as abandoned in the beginning of 2009, but the Tokyo company managed to revive its application in June 2009. In the autumn of the same year, Apple is believed to have filed requests of opposition before the USPTO and has now time until 28 February 2010 to submit its final opposition statement.

See whether the Canadian lingerie manufacturing company Coconut Grove, to which the USPTO assigned the trade mark “IPAD” for padded bras, will join the technology giants’ war game.

 

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23 January 2010

Data retention aims to fight file sharing users rather than terrorists


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Well, some have always suspected what Austria’s Die Presse has recently reported thereby quoting an official.

The gentleman in question is Christian Pilnacek who is the Head of the Criminal Procedure Department within the Austrian Ministry of Justice. When asked by a journalist, he confirmed the information, according to which the data retention provisions’ applicability should not be limited to only so called “serious crimes”. The latter is, by the way, what the Directive 2006/24 requires. It has been said that this idea has originated in the Ministry of Justice and has found support in the Ministry of Interior. Moreover, in the officials’ view retained data should be accessible in the prosecution of minor crimes and/or in dealing with civil wrongs and hence would perfectly fit in the scope of the provisions conveyed by the Enforcement Directive.

Now the show is over. Seemingly, the entertainment business’ lobbyists have done a good job for their clients. See whether the idea shall prove capable of gaining a legislative majority.

18 January 2010

Austria’s data protection council disfavours new bill on data retention


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The Data Protection Council is an advisory body within the Austrian Federal Chancellery’s administration. In a recent session the Council debated on the newly presented bill on data retention and passed an opinion to the government. The authority’s chair publicly presented the opinion’s upshot: the bill conflicts with Articles 8 and 9 of the ECHR, hence the Council moves for a balance between the privacy right of the persons concerned and the public interest to maintain security and order.

The Council further calls for a restrictive definition of a “serious crime” in order to achieve the data retention directive’s goal to fight organised crime and terrorism.

The Council seems to carefully observe the international, in particular the European, development on data retention. This is mirrored in Council’s recommendation to await the inauguration of the new European Commission and the enactment of the Stockholm Programme, which, given a sufficient consideration to certain privacy aspects, may lead to the data retention directive’s annulment.

I personally share that view and strongly hope for the Council to be proved correct.

14 January 2010

From Russia with (trade mark) love


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I have always known that Russia and Russians are different. So totally different that they can hardly be compared with other nations’ representatives. And this appears to be true also with respect to their dealings with intellectual property.

According to the Russian newspaper Komersant, Vostochniy Express, a Russian bank, has successfully registered with Rospatent words like

“New Year”, “Christmas”, “Holiday”

as well as derivates thereof as trade marks. Not surprisingly, many banks issue promotional offers specially at Christmas or at year’s end. As a consequence of its trade mark grant however, Vostochniy Express has served such banks with cease and desist notices. The proprietor bank has alternatively offered to license the use of its “trade marks” against payment of license fees.

Vostochniy Express demonstrate they are

A Way Ahead In Making Business With Their IP Assets

This bank’s business drive could, however, be barred since the registration of the “trade marks” in suit has been referred to a board of appeal within Rospatent. Pursuant to the Russian trade mark practitioner Vassily Moiseev, the board of appeal is very likely to vacate Rospatent’s grant as it has frequently done in the past.

In my view Rospatent had to reject the registration as these very words are not really capable of distinguishing the products or services of Vostochniy Express from those of other banks. See whether the board of appeal will deliver a judgment consistent with mine.

 

4 January 2010

Beware of the spirits that you call: Microsoft hit by a US software patent


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According to a verdict issued by a jury at the District Court for the Eastern District of Texas that the US Court of Appeals for the Federal District has affirmed ,

Microsoft Had Infringed A Patent

owned by I4I Limited Partnership and Infrastructures for Information Inc. The patent is with regard to “a method for processing and storing information about the structure of electronic documents”.
In fact the patent covers the editing of documents containing markup languages like XML and claims to improve said editing process. The patent’s essential output is to be found in an “add-on” software for Microsoft Word, which expands Word’s capability to work with documents containing custom XML.

The claimant alleged that the custom XML editor in certain versions of Word infringed their patent.

Not surprisingly, Microsoft employed the

“Attack Is The Best Defence”

strategy in an attempt to seek a declaratory judgment that the patent in suit was invalid and thus unenforceable, but has eventually failed as the jury refused to follow the brought arguments.
Moreover, the jury found not only that the patent was not invalid, but also that Microsoft’s infringement thereof was wilful.

Upon a lengthy discussion on the claim construction, validity and infringement of the claimant’s patent, the Federal Circuit affirmed the District Court’s ruling.

To me the importance of the instant case lies in that Microsoft is now being served by the consequences of a policy they have advocated in the near past. In my view it would have been better, if they had reflected the 1991 Bill Gates’ warning that patents could bring the software market to a complete standstill and drive out small players.