HUMAN RIGHTS AND IP MEASURES; MAKING IT STICK ...

Here is a very recent case from the European Court of Human Rights (ECHR, right) which has some surprising intellectual property-related subject matter.

Blake v United Kingdom (App No 68890/01), 26 September 2006. Between 1994 and 1961 George Blake was a member of the British Secret Intelligence Service (SIS); he had signed the Official Secrets Act 1911, which prohibited him from divulging any information relating to his employment on pain of criminal sanctions. Blake became an agent for the USSR, to which he disclosed secret information. Arrested in 1960, he pleaded guilty in 1961 to unlawfully communicating information and received 42 years’ imprisonment. In 1966 the Russians sprung him from prison and took him to Moscow where he wrote his autobiography, No Other Choice. In May 1989 he contracted have the book published the book in the UK. Blake received an advance on royalties, a further advance being due to him on publication. The book was published in 1990.

Left: George Blake at the time he wrote the book

In 1991 the Attorney General instituted civil proceedings to recover any financial benefit from publication on the ground that, in writing and authorising the publication of the book, Blake acted in breach of the duty of confidence he owed to the Crown as an ex-SIS man. The proceedings took nine years from their inception to their conclusion before the House of Lords, the proceedings being beset by a multitude of delays.

In this action Blake complained to the ECHR that the length of the proceedings was incompatible with the reasonable time requirement under Art 6(1) of the European Convention on Human Rights.

Right: the Attorney General, sporting his traditional robes, in the course of the trial

According to the ECHR

(i) The reasonableness of the length of proceedings had to be assessed in the circumstances of the case with reference to the complexity of the case, the conduct of the parties and what was at stake.

(ii) A State is responsible for the efficiency of its system and the way it provides mechanisms to comply with the reasonable time requirement, whether by automatic time limits and directions or some other method.

(iii) Where a State lets proceedings continue beyond the reasonable time prescribed by Article 6 of the Convention without doing anything to advance them, it is responsible for the delay.

(iv) In this case the proceedings were legally complex and the State could not be considered at fault for having raised novel questions of law. However, the proceedings were neither factually nor administratively difficult.

(v) The dispute had some financial importance to Blake, but its significance could not be said to have been acute.

(vi) In the circumstances, the proceedings against Blake were not pursued with the diligence required by Article 6(1) and his civil rights and obligations were been determined within a reasonable time.

(vii) There having been a violation of Article 6, Blake was awarded €5,000 in respect of his claim for non-pecuniary damage.

The IPKat, noting that litigation that drags on for nine years can be worth €5,000 to the lucky litigant, wonders how many Community trade marks for which application was made on or before 1 April 1996 are still stuck in the pipeline while opposition/cancellation litigation drags on. Does anyone know? Merpel says, there's a slight logical problem here - the fact that Blake might not be entitled to his copyright royalties doesn't necessary mean that the British government was entitled to them instead ...

Read the House of Lords judgment here
Buy No Other Choice here
What you can spend your €5,000 on here and here

Making it stick ...

According to the BBC, Tate & Lyle's Golden Syrup is Britain's oldest brand. Its green and gold packaging have remained almost unchanged since 1885. The Guinness Book of Records has bestowed its recognition on the longevity of the breakfast and teatime sweetener, whose tins bear the image of a lion and a biblical quotation ("out of the strong came forth sweetness": Judges 14: 14).

The IPKat says, can anyone identify an older brand in continuous use? Merpel says, if Golden Syrup's the trade mark, what's the generic term?

Recipes for Golden Syrup here and here
Tooth decay here