IMPACT®

Comparative Advertising: relevant law for interim injuctions

Rather belatedly passing on an interesting case I picked up on my Lawtel update a few days ago about getting an injunction in comparative advertising cases (Boehringer Ingelheim Ltd v Vetplus Ltd [2007] EWCA Civ 584 CA (Civ Div) (Pill LJ, Longmore LJ, Jacob LJ) 20/6/2007).

We're talking pet foods/formulas: the products in issue were supposed to have a beneficial effect on dogs' joints and contained an ingredient called chondroitin. Vetplus decided to test Boehringer's products to see whether they had a chondroitin content consistent with that claimed on the label. Vetplus intended to publish the results of its test in comparative advertising material. Boehringer objected to the findings/results and sought an injunction to restrain publication.

Basically, the question was this: what's the relevant law/threshold for granting an interim injunction in comparative advertising cases? American Cyanamid (i.e. straight forward IP injunction) or Cream Holdings (i.e. IP injunction which engages Article 10 freedom of expression)?

The answer, in short: Cream Holdings. Extract from the summary from Lawtel below:

The basis for departing from the normal American Cyanamid rule is through s.12(3) of the HRA 1998, which imposes a threshold test which has to be satisfied before a court can grant interlocutory injunctive relief which might affect the exercise of the right to freedom of expression under Article 10. The general threshold which had to be crossed by the claimant was that he would probably succeed at the trial, Cream Holdings Ltd v Banerjee (2004) UKHL 44 [2005] 1 AC 253 applied. That should be the general rule for trade mark infringement in a comparative advertising case. The instant case was not one in which the potential adverse consequences of disclosure would be particularly grave. If damage to reputation were in itself to be considered particularly grave, then nearly all cases would fall into that class and s.12(3) would be rendered virtually pointless. Accordingly the general rule applied. Therefore no interim injunction should be granted because B had not shown that it was more likely to succeed than not.

Recording artists, copyright and the digital age: the fans bite back!

A nice follow up to our story on "Internet Radio: the Record Companies bite back". Picked up a story in The Times (28 June 2007) about the embarrassment of A-list performers like Barbara Streisand and Sir Elton John playing to half-empty stadiums around Europe because fans are objecting to paying hundreds of pounds for a ticket (strangely, ticket sales have held up very well in the UK even though the price of tickets is higher here than anywhere in the rest of Europe: some mugs are paying up to £850 for a Streisand ticket - and that's face value, not on the black market!).

The reason, of course, is that artists and record companies are viewing tours as a way of recouping lost royalties on record sales. This is old news, but what I hadn't appreciated was that it is referred to apparently as "The Bowie Theory" because it was David Bowie who first alerted his brethren several years ago that the writing was on the wall: "music itself" he apparently said "is going to become like runing water or electricity" and advised performers "you'd better be prepared for doing a lot of touring".

Provided, it seems, that you don't take the mickey with your ticket prices David.

OK, you're in now Gordon: so what you gonna do about Gowers?

Congratulations, Gordon - or should I say, Prime Minister Brown - you've finally done it.

I suppose it is a bit self-absorbed for us in the IP community to push this, what with the global & UK Economy, the NHS, the fight against terror and World Peace to sort out, but it might just be worth mentioning that you asked Andrew Gowers to look at something for you at the end of 2005 - do you remember? - he told you what he thought at the end of 2006, and it's now half way through 2007 and, well, we're all still here, waiting...

Or... you could just leave things as they are. (But in which case, do you think you could just tell us and then we'll all just forget about it).

Headhunters become the hunted

The Information Commissioner's Office has issued a press release highlighting the surprising fact that  around HALF of recruitment and employment agencies in this country have failed to notify the ICO that they process personal information on individuals.  These organisations are therefore not registered as data controllers.

The ICO announced ominously that it will now "begin taking further action" against culprits.

Those concerned should take note - you don't need to have used an employment agency to know that they hold quite a bit of personal information on their clients, who may vote with their feet if it got out that the agency was in any way cavalier with its data rotection obligations.  If further incentive were needed, section 21(2) of the Data Protection Act 1998 makes it a criminal offence to fail to notify.  This is a strict liability offence - you can be convicted even if your failure to notify was inadvertent.  The offence is punishable by a fine of up to £5,000 (unlimited fine if the case goes to the Crown Court).

You have been warned.  Or notified.  Whatever.

Internet Radio: the Record Companies bite back

Over the past couple of years, particularly at this time of year with exam papers piling up on my desk to be marked (I'm a tutor at Nottingham Law School when I'm not helping out the Freeth Cartwright IP&T crowd) I've found myself turning to internet radio to get me through those dark, dark days of marking the same question over and over again (if I read another script confusing the purpose of s5 with s10 of the TMA 94 I think I might just have to kill myself).

But anyway, the point is that yesterday, when I clicked onto my favourite internet radio station (www.pandora.com) I was surprised and frankly very irritated to find that they, along with other US internet radio stations, had gone on a day of silence as a mark of protest and solidarity against the decision of the US Copyright Royalty Board (CRB). The judges sitting on the CRB refused an appeal against a previous decision to increase royalty fees payable by internet radio stations by 300%, taking effect retrospectively to the beginning of 2006.

Needless to say, much bleating and banging of drums and talk of internet radio stations going to the wall.

It struck me as yet another flashpoint along this rocky journey we're navigating with copyright - this constant tension between the interests of copyright owners and those wanting to publish/use copyright content in the 'new' media.

On the one hand, if, as the record companies appear to have argued, internet radio stations in the US have been getting away with below market royalty rates, why should they? Particularly when conventional radio stations are paying conventional royalty rates?

But on the other hand, since listening to pandora.com - which, unlike conventional radio, is underpinned by very clever software that means I can create a limitless number of bespoke personal radio stations that will only play music matching the style of the artist or song I'm in the mood to listen to (they call it their 'music genome project'!) - I have found various artists I would never have heard of and, yes, have gone out and bought/downloaded CDs I would not otherwise have known existed let alone been in the market to purchase.   

Traditionally, the answer would have been "advertising" but of course the proliferation of broadcast media and broadcasters means it's not as easy as that and you can well understand how Pandora and their brethren will struggle to increase advertising revenues by 300% just like that.

So, charge me for access! Well, again, a feature of a lot of new media products and services is that, really, we don't need them: no matter how clever the underlying technical/software application is, whilst they're nice to have free once you start charging it's a massive barrier to take up and people move on to the next clever - and free - service.

So, any tips on what I might listen to next year to get me through my marking gratefully received...

France declares war on US and UK

Calm down - you don't have to reach for grandad's trusty "tin hat", or start digging a shelter in the back yard.  Don't write off the holiday home in the Dordogne just yet.

France does apparently consider that a state of war exists with Uncle Sam  (and so by extension John Bull too) but this is "economic war" - or so says the French Head of Intelligence.

According to the report in the Independent, this siege mentality is behind the French Government's decision to ban its employees from using "le BlackBerry" (surely "Mûre" ? ed).  Given that messages from these devices go via servers in the US and UK, the risks for national security are seen as obvious and profound. Research In Motion, the pedlars of these infernal Anglo-Saxon devices deny this - but then they would, wouldn't they ?

We little Englanders - so out of tune with the spirit of the modern united Europe...

Freedom of Information Act Curbs Questioned

Interesting reading in the Guardian about the Constitutional Affairs Select Committee giving the proposed changes to the Freedom of Information Act a good mauling.

It throws up an interesting statistic that makes us pause for thought on the proposal to curb freedom of information requests and exempt Parliament from the Freedom of Information Act: apparently, the government estimates that the total cost of answering freedom of information requests is £35m a year across all public bodies. OK, £35m is a lot of money, but "Freedom of Information" is pretty fundamental stuff isn't it? Or at least it should be - otherwise, why bother? In which case, is £35m really that expensive?

We all know that the Act is from time to time used frivolously - but then from time to time you get morons shouting silly things at MPs from the public gallery, but the benefits of open access are seen, constitutionally, to outweight the downsides.

"We have been sent no evidence indicating a need for such an exemption" the select committee says of the proposal to exempt Parliament from the Act, and it suggests that ministers have focused "entirely" on reducing the costs of the act but have ignored the benefits of the legislation: ultimately, they argue, the Act helps hold government to account for waste and malpractice and helps improve the scrutiny of official decisions.

Ethics v Profits

The great ethics versus profit battle appears to have been successfully resolved between Starbucks and the Ethiopian Coffee Industry. The BBC reports that Starbucks has formed an alliance with the industry which includes the acknowledgement by Starbucks of Ethiopia's ownership of various unregistered coffee brands and Starbucks rights to use these brands in specific markets.

Starbucks had opposed potentially lucrative trade mark applications made by the Ethiopian coffee industry and since Ethiopia is the largest coffee producer in Africa this potentially stymied a lucrative revenue source for the industry.

Given the respective wealth of of the parties it is good to see the likes of Starbucks taking into account the practical impact of its dominance. For both parties the fact they had taken steps to register their trade marks gave them valuable leverage in negotiations with each other and in particular giving the Ethiopian industry the clout to take on the commercial might of Starbucks.  This proves the value of this system to all - the protection of your brands is  not just a commercial issue but may also have considerable political and economic impact also.

In the age of the "ecopound" such issues are valuable considerations when seeking to establish your trade mark portfolio.

Brits rush in where angels (and, now, a lot of Brits) fear to tread

BBC News reported yesterday that  people in this country now fear cyber crime more than they do being burgled, and that attacks on PC's running Windows could be happening every 15 minutes.

The declining fear of burglary does not appear to be due to falling crime levels - rather it seems to indicate greater awareness - and therefore fear - of cyber crime, and the possibly drastic consequences of falling prey to it.

So - does this indicate a loss of backbone on the part of the great British public?  Are we losing our nerve? 
Apparently not.  On the same day as the BBC reported the problem, the Techworld site proclaimed that the UK "sets the pace when it comes to cyber crime".  Before you shout "See-our cyber criminals are the best in the world", what Techworld is saying is that Brits have embraced  online commerce more avidly than about anyone else in Europe, making them the prime target of phishers and botherders everywhere.  Makes you proud - who says this country lives in the past?

The BBC also provide a useful glossary of cyber crime terms in case you want to drop the latest jargon in front of admiring acquaintances down the pub / in the chatroom...

IPO consultation ends today

I posted last month about the IPO consultation about a minor part of the forthcoming changes to the UK trade mark practice. The consultation close closes today.