REPRESENTATIVE ACTIONS - TIME TO CONSULT; TWO FROM THE CFI

Representative IP actions - your chance to comment

Right: The Representative of the People on Duty (Jacques-Louis David, 1794)

The IPKat is pleased to tell you that the UK Patent Office is conducting a consultation exercise in relation to the implementation of Article 4 of the IP Enforcement Directive 2004/48 that relate to the bringing of representative actions on behalf of classes of IP owners. This initiative, Representative Actions for the Enforcement of Intellectual Property Rights, needs your response by 18 December 2006. Why is this happening now? The answer is that provisional proposals were offered for inclusion in the implementing regulations, but they were omitted from the final version once it became apparent that they were not an adequate solution for representative actions and that the Directive did not require the making of specific provisions. However, the Patent Office has decided that a further formal consultation was needed to consider this issue in detail.

The IPKat is delighted that this consultation is taking place; he is saying absolutely nothing about the level of consultation that preceded the changes to the Patent Office's notorious website ... Merpel adds, it would be lovely if the Patent Office could post all responses online so that we could read them and post comments like "yes, we agree" or "this response is misguided for the following reasons ...". That way, the Patent Office would have to read the same submissions several times over from different respondents and the comments would help them focus more readily on sensitive or difficult issues.

Consultative paper here
Response form here
Test yourself to find out how few clicks you need to get from the Patent Office's home page here to a copy of the Intellectual Property (Enforcement, etc.) Regulations 2006 (2006 No.1028).


Two from the CFI

The Court of First Instance of the European Communities threw up two significant cases yesterday. They are

* Case T‑172/04, Telefónica v OHIM, David Branch. Since it's not in English, the IPKat is a little disadvantaged, but it looks to him as though Telefónica applied to register the sign represented here (above, right) as a Community trade mark for goods and services in classes 9, 38 and 42 and that Mr Branch opposed, citing the earlier CTM registration of the word mark EMERGEA for goods and services in classes 28, 36 and 38. The IPKat thinks that the opposition succeeded in part and that Telefónica's appeal failed. If there's anyone out there who can add to this, the IPKat will be delighted.


* Case T‑168/01 GlaxoSmithKline Services Unlimited v Commission of the European Communities. In brief, GSK ran a differential pricing scheme in Spain in order to limit the export of medicines sold there to countries where their products fetched higher prices. This scheme involved GSK charging Spanish wholesalers a lower price (fixed by the Spanish authorities) for drugs destined for local consumption, but a higher price if they were to be exported. In 2001 GSK notified the Commission that it wanted to do this and sought a green light for what might otherwise turn out to be a breach of competition law. The wholesalers objected to the Commission, which refused to grant an exemption.

GSK appealed, arguing that it was actually the varying national prices of pharmaceuticals that created market distortions, not their dual pricing policy, and that its price differentials did not affect competition but just counterbalanced the distortion of competition caused by the low prices set by the Spanish authorities. In yesterday's ruling the CFI has not actually conferred its blessing on GSK's pricing scheme but annulled the Commission's decision on the basis that it had failed to consider properly whether that scheme, which was prima facie a distortion of competitiom, was nonetheless permitted under Article 81(3) of the EC Treaty.

The IPKat is delighted with this ruling. While national governments act with the best intentions when seeking to protect the perceived interests of the ill, businesses must at least have the chance of redressing damage caused to their businesses by the unintended consequences of official interference with the market at national level.

Merpel notes that medicines marketed in Spain but sold elsewhere are medicines that aren't getting to Spanish consumers and wonders whether the pricing of medicines is altogether too important an issue to leave to the market.