17 November 2011

Where Pizza Meets Haute Couture


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Saw this one yesterday in downtown Sofia and could not resist to take a picture and blog on it.

Later I was somewhat surprised to find out that Escada had obtained a Bulgarian registration for their trade mark already in 2003.

Could there be room for a sound dilution claim based on Art 4 (3) of the trade mark directive?

13 June 2011

Apples Growing Clouds


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Image by Sean MacEntee on Flickr

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Apple officially launched its much-hyped iCloud suite of services, applied for the registration of the trademark “iCloud” and entered the hostile territory of trade mark infringement: the Arizona based iCloud Communications LLC brought legal proceedings against Apple Inc before the Federal District Court for the District of Arizona.

Does it sound familiar? I personally felt reminded of Apple’s dispute with Fujitsu over the iPad trade mark. Indeed, the current situation is similar to the iPad case, but nevertheless distinctive in some important instances.

When I first read about the lawsuit I navigated to the US Patent and Trademark Office’ website and performed a search thereby processing the sign “iCloud”.
And you know what?
Apart from Apple’s numerous applications, there is only one US registered trade mark consisting of the iCloud sign and it is owned by the Swedish company Xcerion AB. The same is true also with respect to the Community Trade Mark  iCloud. Xcerion has registered both, the US and the Community Trade Mark for classes 9 and 42.

What follows is that iCloud Communications’ mark

Is Not A Registered One

Should they then qualify to claim infringement at all?

Yes, however not on the ground of registered trade mark infringement, but on unfair competition and false designation.
Indeed, iCloud Communications’ complaint relies on § 1125 (a) of the Lanham Act as well as on Arizona state law.
Precisely, iCloud Communications claims that Apple infringes upon the iCloud trade mark of iCloud Communications, because

By virtue of iCloud Communications’ long and extensive use of the iCloud Marks, its advertising and promotional campaigns and expenditure of substantial monies thereon, iCloud Communications had, prior to June 6, 2011, established significant goodwill and valuable rights in and ownership to the iCloud Marks in connection with computer telephony and electronic data transmission and storage services.

and

The goods and services with which Apple intends to use the “iCloud” mark are identical to or closely related to the goods and services that have been offered by iCloud Communications under the iCloud Marks since its formation in 2005.

Reads pretty logical, does it not?
Well,

Besides One Thing

Apple’s attempt to register and use the iCloud mark is not the first one: iCloud Communications themselves mention the previous trade mark registration of Xcerion

whose use of the mark post-dates that of iCloud Communications by two years.

So, is there any reason why iCloud Communications omitted to sue Xcerion?

Hmm, from what I read on the Internet, some wagging tongues allege that Xcerion’s Pockets

Were Not Deep Enough

Hence, observing the development of the iPhone and iPad disputes, this one is also likely to end up in a settlement agreement.

In that event Apple will have to pay a (negligible) amount of money to operate a nursery in the clouds.

From a legal point of view, however, the matter involves the (alleged) infringement of an unregistered trade mark by a registration application.
This is not really common place and thus of a greater interest for me.
I will therefore stay focused on it.

Did I miss something? It is now you turn to add -)!

7 June 2011

A Single Market For Creativity And Innovation?


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Image by Jordanhill School D&T Dept on Flickr

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About two weeks ago the European Commission’s Directorate General for the Internal Market issued its wide-ranging strategy to modernise intellectual property rights.

I could hardly call it a major move, although it claims to present Commission’s

overall strategic vision for delivering the true Single Market for intellectual property that is currently lacking in Europe – a European IPR regime that is fit for tomorrow’s new economy, rewarding creative and inventive efforts, generating incentives for EU-based innovation and allowing cultural diversity to thrive by offering additional outlets for content in an open and competitive market.

Sounds pretty much like a bunch of clichés, does it not?
Indeed, while the majority of writers and commenters seem to have ignored the couple of really

Refreshing Statements

thereby choosing to stay focused on the lots of blah-blah, I decided to discuss the document from a slightly different perspective once I had given those 25 pages of text a careful read.

So what was different?

Let me start with the

Copyrights

The Commission has realised two very important things:

First,  Europe remains a patchwork of national online markets. The ongoing lack of a unified European copyright law disables millions of citizens to use and share published knowledge and entertainment easily and legally across the Union and irrespective of their Member State of residence.

Second, creators of user generated content (UGC) need a recourse to a simple and efficient permissions system to use third-party copyright protected content in their own works, provided that their UGC is created for non-commercial purposes.

This sounds promising as an attempt to foster creativity, does it not?

Unfair Competition

I was amazed to read that the Commission has finally found the guts to address the grey area of unfair competition, albeit limiting it to trade secrets and parasitic copying as examples.
Why a grey area? Simply because it is dealt with by Member States using different concepts and providing different levels of protection.
Thus, while some Member States (e.g. Austria, Germany, Czech Republic, Spain, Belgium, Denmark, Finland) have specific provisions on unfair competition, other Member States’ laws rely on their Civil Code, either in specific provisions (Italy), or by the provisions generally applicable to tort (France, The Netherlands).
Finally, in the United Kingdom there is no law on unfair competition and rather the tort of passing off must be used.

The Commission promises to deliver a comprehensive study to assess the economic benefits that would derive from an EU approach in the area of unfair competition.

Parasitic copying rides on others’ creativity and innovation and must be opposed, preferably on an EU level.
So, I am really curious as to this study’s findings.

Trade Marks

Even though national trade mark registration in the EU Member States has been harmonised for almost 20 years and the Community trade mark was established 15 years ago, the Commission is keen to revise both the Trade Mark Directive and the Community Trade Mark Regulation.

To be honest, I support this move. The Commission has figured out that traders need faster, better and tighter registration systems. Further and following the repercussions of the Court of the European Union’s decision in Louis Vuitton vs Google, the Commission has acknowledged that the marketplace needs an Internet suitable definition of a trade mark and what constitutes a use of it.

Everything Else

For the sake of completeness, I should say that the Commission has also addressed issues relating to the unitary patent, non-agricultural geographical indications and the fight against counterfeiting and piracy.

However, those turned out to be nothing else but an “old wine in a new bottle” and I consequently decided not to comment on them.

Conclusion

All in all the Commission has reviewed the current European framework on intellectual property and has come to the only permissible outcome: the European Union lacks either the necessary harmonisation (in the realm of copyright and unfair competition) or clarification (in the realm of trade marks) and is therefore far away from a single market for creativity and innovation.

The proposed actions are capable of providing some relief, provided, however, that they survive the assumed attacks of lobbyists.

How about you?

What do you think should be done to achieve a single market for creativity and innovation?