 |
Patent: a big,
shiny obsession
with IP litigators |
So many major conferences, seminars, lectures and other events have recently been organised in the field of patent litigation that one might be tempted to think that it is the only species of IP that ever gets litigate. Understandably there is much interest in the European Union, where practitioners and their clients
[or should that be patent owners and their professional representatives?] have to juggle with their own domestic patent litigation system, the often complex and arcane proceedings before the European Patent Office, and a whole set of new ifs, whens and maybes that characterise the Unified Patent Court and what is now the 16th draft of its Rules. Likewise there is an almost obsessive interest in patent litigation in the United States, where the subject lies somewhere between a cottage industry and an art form, with ever-shifting guidance concerning injunctions, damages, patent eligibility and the interrelationship of patent suits with the sale price of patents singly or in bundles. On 4 and 5 December no fewer than three international two-day events are addressing the subject. One wonders if there will be anyone left back in the patent attorneys' offices to answer the phone ...
 |
Trade mark litigation
can take some licking! |
In contrast, there has not been any correspondingly focused attention on trade mark litigation, or indeed on other forms of trade mark dispute resolution. Readers of this weblog will know that this Kat has frequently commented on cases that should never have been litigated at all, either since they are no-hopers or because, even if they can be won, the successful litigant derives no obvious benefit from winning or can derive a swifter and more effective advantage by not litigating
[a very recent example of a trade mark dispute which this Kat truly thinks was futile is Galileo v OHIM and others, noted here]. Most of these cases have involved trade marks, trade dress and passing off. In many cases, where the litigation consists of trade mark opposition proceedings concerning a Community trade mark, a decade or more can pass between the initial filing of a trade mark and a final resolution -- a delay which, if acceptable to the parties, suggests that the matter should surely have been dealt with more sensibly by other means.
 |
Coexistence is easy here,
since lions and lambs are
not confusingly similar |
Wearing his
MARQUES hat, this Kat has championed negotiation and coexistence agreements as a valuable and constructive alternative to traditional trade mark litigation, and has had the privilege of being able to pioneer that organisation's Coexistence Agreement Workshops -- which began in Amsterdam two years ago and which have now been organised in commercial centres such as Brussels, Bucharest, Madrid, Munich and Rome, and even as far afield as Lima, Asuncion and Mexico City. These workshops encourage participants to explore voluntarily agreed coexistence, which can only be achieved if the parties have a clear understanding of the trade mark litigation options to which they can resort if consensus is not established. On this basis they can reach settlements that define the scope of use of similar marks, ensuring that their mode of use and the goods and services for which each side to the agreement will use them, will avoid litigation -- and will not give rise to any suspicion of uncompetitive market-sharing or deceit practised on shared consumers.
 |
| Team of all the talents ... |
This Kat's friends at C5 have put together a big conference on Trade Mark Litigation, on 29 and 30 January 2015 at the Royal Windsor Hotel, Brussels. This is C5's first sortie into this field and the Kat wishes it well. This weblog is one of C5's media partners for this event, which features some notable Katfriends in the extensive cast of experts
[A team of all the talents? Well, says Merpel, they are certainly on the ball]. One is the thoughtful and articulate John Noble (Director of the British Brands Group); another is recent guest Kat Darren Meale (Simmons & Simmons), who is currently also a Deputy District Judge. With experience spanning both the Court of Justice of the European Union and the Irish Supreme Court, Judge Fidelma Macken -- who taught with this Kat at Trinity College Dublin several lifetimes ago -- has much to offer, and there's more fire-power from Antwerp Commercial Court judge Sam Granada. Further dispute resolution know-how comes from Crowell & Moring dispute resolution specialist Flip Petillion, an arbitrator and WIPO panellist, and another Katfriend of long standing, Judge Michael Fysh QC, who has jumped ship as it were and shifted, following his retirement from the bench, from traditional litigation to mediation.
The link to this event's web page can be found
here.
