FRIDAY MISCELLANY

Electronic filing

The IPKat has just received intelligence concerning a new United Kingdom Order: this is the Registered Designs Act 1949 and Patents Act 1977 (Electronic Communications) Order 2006 (Statutory Instrument 2006 No.1229), which comes into force on 1 October 2006. It amends the Registered Designs Act 1949 by enabling the registrar of designs to direct the manner in which electronic filing is made, also tidying up the provisions governing electronic communications under the Patents Act 1977.

Right: provision for a different sort of electronic filing ...


Easy win for UEFA

On his return from Toronto the IPKat has found Union des Associations Europeennes de Football and others v Briscomb and others, a decision of Mr Justice Lindsay from Monday 8 May which was noted on the Lawtel subscription-only service. This was an application for summary judgment in an action for copyright infringement brought by UEFA, the governing body for European football. In short, UEFA run an exciting if over-long football tournament called the European Champions League, games in which were broadcast live by two other claimsnts. Apart from the football games themselves, the broadcasts featured ancillary works in which UEFA purported to own the copyright, such as specially composed music, uniform branding, sequencing and the UEFA logo.

Briscomb and the other defendants transmitted the games to their subscribers via their www.sportingstreams.com website, having digitally captured and electonically processed UEFA's broadcasts. Claiming that Briscomb infringed its copyright in the broadcasts and the ancillary works by communicating them to the public contrary to the Copyright, Designs and Patents Act 1988 s.20 and by copying them contrary to s.17, UEFA sought and obtained summary judgment. Lindsay J agreed that all the claims had been made out and Briscomb had no real prospect of defending them.

Nothing extraordinary here, says the IPKat, though he wonders whether Briscomb et al raised any Euro-defences. That seemed an effective way to avoid summary judgment in
Sportswear (see IPKat comment here). Merpel says, Briscomb might be in trouble, but the www.sportingstreams.com website seems quite busy.


Vitafruit runs out of juice

The IPKat has just spotted yesterday's ruling of the European Court of Justice in Case C-416/04 P The Sunrider Corp. v OHIM. Sunrider's application to register the word VITAFRUIT as a Community trade mark for herbal and vitamin beverages was successfully opposed by the proprietor of an earlier Spanish registration of the word VITAFRUT.

Sunrider put the opponent to proof of use of its mark: the proprietor provided OHIM with six bottle labels on which his earlier trade mark was displayed and 14 invoices and orders, 10 of which dated from before publication of Sunrider's application. Sunrider appealed to the Board of Appeal, which dismissed the appeal but noted that the earlier mark was used only in respect of fuit juice concentrates. Sunrider's appeal to the Court of First Instance (CFI) also failed, so the further appeal to the ECJ was its last chance.

The ECJ dismissed the appeal, following a careful appraisal of the CFI's decision on all of the grounds of appeal. On the issue of similarity of goods the ECJ had this to say:

"86 ... the Court of First Instance found ... that the goods ‘herbal and vitamin beverages’, for which registration is sought, and the goods ‘concentrated fruit juices’, for which genuine use of the earlier trade mark has been established, are intended for end-consumers. Likewise, it held ... that those goods share the same purpose, that of quenching thirst, are to a large extent in competition, have the same nature and method of use – both are non-alcoholic beverages normally drunk cold – and that the fact that their ingredients differ does not affect the finding that they are interchangeable because they are intended to meet an identical need.

...

88 In complaining that the Court of First Instance did not hold that the differences between the goods in question were more important than the one characteristic they shared, namely that they are aimed at the same potential end-consumers, the appellant is, in reality, asking the Court of Justice to substitute its own assessment of the facts for that of the Court of First Instance .... Unless there has been distortion, which has not been alleged here, such an argument is not a point of law which is subject, as such, to review by the Court of Justice ...".

The IPKat admires Sunrider's perseverence, but didn't really think it had a chance. Merpel adds, there's no point in feeling too sorry for Sunrider: either it knew of the earlier mark, in which case it was walking straight into trouble by applying for the CTM, or it didn't - in which case it jolly well should have.

More sun riders here, here and here