Tuesday tiddlywinks

Have you checked out the IPKat's Forthcoming Events page recently? Quite a few new items have been added of late, so make sure you mark your diaries for the ones you fancy.

Acte eclair

Last Friday the IPKat was wondering about the background leading to the new Czech preliminary reference to the Court of Justice of the European Union in Case C-299/12 Green - Swan Pharmaceuticals CR. One reader, known only as LB, kindly posted some information as a comment below that Friday post. The IPKat has also received the following from fellow blogger Martin Husovec (Legal Counsel & Researcher at EISi):

"The company Green-Swan Pharmaceuticals CR (Green-Swan) sells the food supplement "GS Merilin", which packaging also includes the following sentence (health claim): 

"The preparation also contains calcium and Vitamin D3, which help to reduce a risk factor in the development of osteoporosis and fractures". 

Czech Agriculture and Food Inspection Authority (CAFIA) considered this claim to be in conflict with art. 10(1) of Regulation 1924/2006, which prohibits some health claims in the labeling or advertising of food products. As a consequence, CAFIA ordered Green-Swan to pay 200,000 CZK (7,900 EUR) in fines. Green-Swan appealed the fine before the Regional Court in Brno, arguing that its health claim does not constitute a ‘reduction of disease risk claim’ as defined in art. 2(2)(6) Regulation 1924/2006. It also argued that Regulation 1924/2006 did not apply to its case because of an inter-temporal provision - art. 28(2) Regulation 1924/2006. This article provides that 

"Products bearing trade marks or brand names existing before 1 January 2005 which do not comply with this Regulation may continue to be marketed until 19 January 2022 after which time the provisions of this Regulation shall apply." 

Green-Swan argued that this provision applies not only to trade marks or brand names, but also to attached commercial communications as the objected health claim, so the Regulation should not apply in its case. The Regional Court in Brno rejected these arguments and confirmed the fine imposed by the CAFIA. Green-Swan appealed further before the Czech Supreme Administrative Court. The court considered that these legal questions were neither acta clair nor acte éclairé and thus submitted preliminary questions to CJEU".

The original Czech decision can be accessed here -- in Czech.

Mayotte: where equestrian|
events are strictly for the
sea-horses ...

Mayotte draws closer to Europe.  According to the European Council Decision of 11 July 2012 amending the status of Mayotte with regard to the European Union (which has just been published on the online version of the Official Journal of the European Union here), the Indian Ocean archipelago of Mayotte is ceasing to be an "overseas country or territory" governed by France and is being metamorphosed into "an outermost region of the Union within the meaning of Article 349 TFEU".  The IPKat isn't sure what level of IP protection has existed in Mayotte -- and will presumably continue to exist -- before this momentous event takes effect on 1 January 2014, but he's sure that it means something, if only for customs regulations and the free movement of goods within the European Economic Area.  Can any reader please advise?

Around the weblogs.  From the Brandprotect Blog comes "Shell’s “Let’s Go” Campaign Hoax Fools Many, Spreads Fast, Stains Their Reputation", reporting on a stunningly well-executed brand attack on Shell by Greenpeace and the Yes Lab. While every brand is a potential sitting target for action of this nature, some brands are always more likely to be target than others -- and there's no easy way to deal with treatment of this nature. Over on IP Draughts, Mark Anderson surprises us all with a variation on a popular theme: "10 words and phrases you should use in IP contracts", the use of which will make Mr Pettifog (right) "marginally less irritable".  Design law blog Class 99 contains a full-length analysis by Patrick Wheeler (Collyer Bristow) of a very confusing passing-off case, pitching HENLEY against HENLEYS, in which the Court had to grapple with "wrong-way-round" confusion -- where the evidence suggests that consumers think the claimant's goods are the defendant's. Turning to copyright, Iona Harding (1709 Blog) looks at the latest stumbling block that WIPO's proposed exceptions in favour of the blind and partially-sighted have run into.


"Hooper Report: Industry should lead on new ‘Copyright Hub’" is the breaking news from the UK this morning. It comes from a Department for Business, Innovation and Skills media release which reads, in relevant part, as follows:

After years of back-breaking, heart-breaking toil,
British creatives get what they've always wanted --
a chance to participate in a real live steering group

"The creative industries need to play a key role in leading and funding the Copyright Hub, a marketplace for rights to streamline copyright licensing and make transactions easier for creators, rights holders and users, according to an independent report published today by Richard Hooper. The report, ‘Copyright works’, was Richard Hooper’s final report on the feasibility of developing a Digital Copyright Exchange. The report’s two key recommendations are for the creation of a not-for-profit industry-led, industry-funded Copyright Hub, and the establishment of a steering group to drive forward and oversee the design and implementation of the Hub.

The Copyright Hub will have five main purposes, to:

act as a signpost and be a navigation mechanism to the complex world of copyright;

be the place to go for copyright education;

be the place where any copyright owner can choose to register works, the associated rights to those works, permitted uses and licences granted;

be the place for potential licensees to go for easy to use, transparent, low transaction cost copyright licensing;

be one of the authoritative places where prospective users of orphan works can go to demonstrate they have done proper, reasonable and due diligence searches for the owners of those works before they digitise them. ...".

This Kat is moving house between now and the end of the week and hasn't had time to digest this. Nor -- yet -- does he have any online facility in his new abode, though he's working on it. He hopes that fellow Kats and readers will give this some thought and provide him with something useful to read when he's next online.


From the IPKat's convivial friend Roland Mallinson (Taylor Wessing) comes the following little snippet:

"There was a story last week in the London Evening Standard about the Americans building an exact replica of the London 2012 Olympic BMX track in California to help with their practice. It set me thinking….

Once upon a time it was
only the bikes that got
design protection ...

Aside from issues of sporting ethics and the universal Olympic values, this story raises an interesting question for IP lawyers. On the presumption that the design of these BMX tracks requires considerable skill and expertise (and the website here suggests it does), they will be the subject of copyright and, in Europe at least, unregistered design protection. If the design has only been made public within the past year, the design could also still be registered (again in Europe, at least). The Americans seem ready to admit they copied the design, right down to the last hump -- thanks to the computer wizardry employed. Since that has been done in Chula Vista, it would be an issue of Californian or Federal US law. Arguably the process of creating the computerised 3D scan of the track in the UK gives rise to an infringing act here. Since this is the only Olympic event to which I managed to get tickets for my family, I will now be watching with renewed professional interest, i.e. just how good was the American copy? I wonder if Mitt Romney has any views he'd like to share on this".