This Kat, having now settled into his temporary quarters in Dallas, is attending this year's International Trademark Association (INTA) Meeting, the 135th (click
here for programme). After a brief bout of socialising he headed for the Professors' Lunch, at which guest speaker
Marty Schwimmer (Leason Ellis, right) gave a powerful, unashamedly nostalgia-laden, account of the pre-history of cybersquatting and its evolution into the era of the gTLD. There then followed a general discussion, in which this Kat suggested that the importance of the .com regime, and of top level domains in general, was diminishing as the increased use of mobile hand-held devices, tiny urls on Twitter, and apps, reduced user awareness of top level domains and therefore their commercial value. Marty felt that the amount of money pumped into top level domain names would ensure that they'd remain important for a good few years to come.
The Scholarship Session, on the afternoon of Monday 6 May, was opened by Dr
Lukasz Zelechowski (University of Warsaw), speaking on the unitary character of the Community trade mark (CTM) and its impact on the protection of CTMs. Lukasz first reviewed the Court of Justice of the European Union (CJEU) ruling in
Case C-235/09 DHL v Chronopost, on the extent to which injunctive relief, granted in the court of one EU Member States, should or must extend to the entire extent of the EU? Since the right to a CTM is unitary and extends throughout the territory of the WU, it was at least arguable that injunctive relief should be coextensive with it. However, where the alleged infringement was not likely to interfere with the trade mark's essential function, actual conditions suggested that, in the interest of competition, injunctive relief should be limited to those situations in which it is relevant to the protection of the infringed mark. Lukasz then carried the argument across to
Case C-301/07 PAGO International GmbH v Tirolmilch registrierte Genossenschaft mbH, before a healthy and most enjoyable outbreak of discussion about the scope of protection and anticompetitive effects prevented him getting to the end of his prepared talk.
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The metaphor of
derailing the internet
lay at the heart of
Martin's paper |
Next up was
Martin Husovec (Max Planck Institute, Munich), on website blocking and
in rem injunctions. Martin gave a brisk review of Article 11 of the IP Enforcement Directive and Article 8(3) of the InfoSoc Directive before setting out a vision of Europe's 'remedy landscape', taking in primary liability and secondary liability for infringing acts, as well as injunctions
in rem against non-infringing but facilitating third parties. Contrasting this with US tort liability for contributory and vicarious infringement, Martin demonstrated how far EU doctrine extended beyond it. He then went on to show how
in rem relief, as part of the law of property, is enforceable against all parties and not merely against those defined as infringers. Some eight jurisdictions now offer website blocking injunctions, Martin explained, reviewing the extent to which these remedies are effective in different scenarios. They are more useful in trade mark law than in copyright law, he argued, since in the case of copyright the infringement is demand-driven and consumers actively seek the blocked content, which is not the case with supply-driven trade mark infringement.
The IPKat deeply thanks the various generous souls who contributed to Martin's being able to attend the INTA Meeting, including Marks & Clerk, Mike Mireles, Francis Davey and an anonymous donor in memory of David Latham, who passed away so suddenly and tragically earlier this year.
