Monthly Archives: November 2016

Joachim Bornkamm, Former Presiding Judge, Federal Court of Justice (Germany)

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Judge Joachim Bornkamm began his career as a young magistrate in the German judicial system before transferring to the Federal Ministry of Justice, where he worked in the copyright department. “From then on I was always linked to intellectual property,” says Mr. Bornkamm. Though he had no IP experience prior to becoming a judge, Mr. Bornkamm then spent more than two decades delving into IP issues, first at the German Court of Appeal, where he focused on IP and competition law, and then at the Federal Court of Justice, Germany’s highest court for civil jurisdiction. The last eight years of his term were spent as Presiding Judge on the Federal Court of Justice. He retired in 2014, and this year will be joining INTA for its Digital World Conference​ in Brussels, Belgium, from December 1 through December 2 to participate in a panel examining enforcement in the digital age. 




Here, Mr. Bornkamm shares some of the challenges he faced as a judge in the early years of the Internet, how he approached the learning curve, and what he thinks about pending legislation that is meant to help fix some of today’s biggest challenges in this realm. 




What issues around enforcement in the digital world were most challenging during your time on the Court? 




There have been so many cases in the EU on keyword advertising, and the decisions have been quite different among courts in Austria, Germany, France, and the U.K., so that has been quite an interesting evolution. There were lots of discussions among judges about how to approach these cases, and then there was a decision from the European Court of Justice [Google France, Case C-236/08], which didn’t make things much clearer. The very first encounters with the Internet were via domain name cases, however. When I first came on the Court, there was not one decision in this area, and there was a strong opinion that the legislator would have to step in. But then cases came to us which had to be decided without any support by statutory law. Five years later, there was a clearly structured, comprehensive law in place to solve all possible conflicts relating to domain names. It was all created by case law. That was quite a challenge, to shape the law within 12 or 15 decisions, which now comprise the case law in these matters. 




It must have been a challenge also because these issues were so new? 




Yes. From a technical perspective, it’s very important to go out and discuss developments and learn from industry how things are functioning. You have to understand what’s happening.




How did you do that? 




Talking to the industry is difficult; you don’t want to be compromised, so instead we would attend conferences. Judges shouldn’t be too hesitant about talking to people because you’ll never know what’s going on otherwise. With keyword advertising cases, we had to learn the technical background—at first, we knew nothing about the economic importance, why it was so valuable for the advertising industry, or what the dangers were. That, I think, I only learned by dealing with the cases. 




Did comparing notes with other judges help?




We have very good contacts with the U.K. judges. They are very interested in our judgments and sometimes they would have them translated. I had good contacts with Austrian colleagues as well, which is good because they write in German, too, and also with the Dutch. The Austrians and Dutch have a similar way of reasoning, whereas it’s more difficult with the French judges, for instance, because they write rather short, formalized judgments and, just like the Court of Justice of the European Union, they only quote their own precedents, but never judgments from other Member States, and the reasoning is very apodictic. 




What were some of the most challenging issues you were dealing with toward the end of your term on the Court?




We had a number of decisions on Internet service provider liability dealing with who is responsible for infringement online. We developed a theory that the Internet platform is never the infringer, but an intermediary: an entity that is doing something that constitutes a causal link to the infringement, but is not acting directly. That’s very difficult to make feasible and practical because private use of another’s trademark is not a trademark infringement, and it is extremely hard to tell whether an offer on an Internet platform is made privately or commercially. Hence, it is very difficult to provide injunctive relief in such cases. It’s still an issue, not only in German case law but in other jurisdictions as well. 




What legislative or other changes do you think could help judges today?




There’s legislative activity that’s going to happen along the lines of the European Commission’s Digital Agenda, which mostly deals with copyright. I’m not confident that that’s going in the right direction. I think that IP rights will be easier to infringe and there will be no adequate remedy for infringements. Of course, the interest of the Commission is to have a free Digital Single Market and the more traffic the better. That, of course, can be very much against the interests of the rights holders. I’m not always convinced that the Commission strikes the right balance. 




At the same time, at first trademark rights holders were very much concerned about keyword advertising, but after a while they saw that there are also advantages when the name of their product is being used as a guide for finding other products, so some of these issues may be resolved by the market eventually.  




Category: Europe; Programs
Published: 11/30/2016 5:28 AM
BlogTag: Europe; Belgium; Programming

Source: TM NEWS

Why Brexit negotiations will fail

Brexit negotiations present a soup of toxic ingredients familiar to any commercial mediator: high stakes, high emotions, personality clashes, lack of preparation, restricted time and a misconceived negotiation strategy.

At stake is the world order that has kept the peace in Western Europe for seventy years. The EU’s founding premise was to bind France and Germany in so tight an embrace that they could never again raise arms against each other. The Brexiteers are far from unified, but reject the status quo. At their outer fringes they rejoice in the possibility that Brexit could trigger the EU’s ultimate destruction. Their vision is a Europe of disaggregated independent states, with strong borders and restrictions on free movement of people.

The backdrop to these competing visions is emotional and antagonistic: threats of civil disobedience, coupled with a surge in hate crime and the murder of a Member of Parliament, hint at the likely social cost of an unsatisfactory outcome to negotiations. The economic cost of failure is likewise grave, and would fall disproportionately on the UK where lower investment, lower productivity, higher inflation and increased government borrowing could impact generations as yet unborn.


Source: JAMS ADR

Unreal Campaign Exhibits at USPTO Trademark Expo

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USPTOExpoBlog112816_V2.jpgOn October 21–22, INTA’s Unreal Campaign visited Washington, D.C., to exhibit at the United States Patent and Trademark Office (USPTO) National Trademark Expo at the Andrew W. Mellon Auditorium. Kevin M. Haley, President of Category Management & Innovation from Under Armour, Inc., gave a presentation on the importance of trademark protection and its relation to the expansion of a brand. Over 26 exhibitors presented at the Expo to educate visitors on the connection between trademarks and everyday life.




USPTOExpoBlog112816.jpgDuring the Expo, the Unreal Campaign demonstrated the differences between real and fake products. With over 1,000 visitors on the first day alone, the Unreal Campaign was able to connect with consumers who would be directly impacted by the dangers associated with counterfeit products. This year, a special group of 400 local middle school students visited the Expo and learned exactly what a counterfeit was and why they should not purchase counterfeit products. Not only were visitors made aware of the economic impact of supporting counterfeits, but they were also educated on the health risks and physical dangers of using counterfeit goods. 




The Unreal Campaign is INTA’s public awareness initiative designed to educate teenagers (ages 14–18) on the importance of trademarks and intellectual property and the dangers of counterfeit goods. In 2016, the Campaign hosted almost 30 student engagement events and launched in 12 new countries. To find out more about the Unreal Campaign click here or contact Unreal Campaign Coordinator Laura Heery (lheery@inta.org). 




Published: 11/29/2016 6:38 AM
BlogTag: USPTO; Unreal; Unreal Campaign; Anticounterfeiting

Source: TM NEWS

Press release: UK signals green light to Unified Patent Court Agreement

This is part of the process needed to realise the Unitary Patent and Unified Patent Court (UPCA). Under the new regime, businesses will be able to protect and enforce their patent rights across Europe in a more streamlined way – with a single patent and through a single patent court.

The court will make it easier for British businesses to protect their ideas and inventions from being illegally copied by companies in other countries.

UK Minister of State for Intellectual Property, Baroness Neville Rolfe said:

The new system will provide an option for businesses that need to protect their inventions across Europe. The UK has been working with partners in Europe to develop this option.

As the Prime Minister has said, for as long as we are members of the EU, the UK will continue to play a full and active role. We will seek the best deal possible as we negotiate a new agreement with the European Union. We want that deal to reflect the kind of mature, cooperative relationship that close friends and allies enjoy. We want it to involve free trade, in goods and services. We want it to give British companies the maximum freedom to trade with and operate in the Single Market – and let European businesses do the same in the UK.

But the decision to proceed with ratification should not be seen as pre-empting the UK’s objectives or position in the forthcoming negotiations with the EU.

Following the announcement today, the UK will continue with preparations for ratification over the coming months. It will be working with the Preparatory Committee to bring the Unified Patent Court (UPC) into operation as soon as possible.

Notes to editors

The UPC itself is not an EU institution, it is an international patent court. The judiciary appointed include UK judges.

Source: UK IPO News

Singapore competes as an international dispute resolution centre

Singapore has been steadily growing in importance as an international dispute resolution centre in Asia Pacific in recent years. The Singapore International Arbitration Centre’s (SIAC) 2015 annual report noted that the jurisdiction had enjoyed its best year since the body was founded in 1991. Not only was it a record year in terms of the highest ever number of cases filed (271), SIAC also reported that the cases involved the highest ever total of sums in dispute – S$6.23bn, around US$4.4bn.

Singapore is vying with Hong Kong for the top spot in Asia Pacific but still has some way to go. The Hong Kong International Arbitration Centre’s (HKIAC) 2015 annual report records 271 arbitrations, 22 mediations and 227 domain name disputes. The total aggregate sums in dispute for arbitration matters were US$6.2bn, around a third more than Singapore. Hong Kong has a six-year head start on Singapore (HKIAC was founded in 1985), so it is not surprising that it hosts more international arbitrations. But now the city-state is bringing forward legislation to make alternative dispute resolution (ADR), whether arbitration or mediation, more accessible, hoping to close the gap on its rival.  


Source: JAMS ADR

Press release: Bedwas High School wins visit from Morph Animators

The competition, set up by the UK Intellectual Property Office (IPO), aimed to inspire creativity amongst the younger generation. It coincided with the 40th anniversary of Aardman, the company behind Wallace & Gromit, Shaun the Sheep, and Morph.

The competition involved:

  • 4 – 7 year olds designing a birthday present for Shaun the Sheep;
  • 8 – 11 year olds creating a storyboard about Wallace & Gromit’s trip to outer space;
  • 12 – 16 year olds making animated videos wishing Aardman a happy 40th birthday.

A short animation by Molly Morgan, aged 15, led to the school winning a workshop with highly skilled Aardman animators for her entire class.

Molly Morgan’s short animation

Baroness Neville Rolfe, Minister of State for Energy and Intellectual Property, said:

I congratulate the pupils of Bedwas High School for their hard work and imagination and for winning this national competition.

The UK’s creative sector makes a huge contribution to growth and innovation. I have been very impressed with the talent on show and the enthusiasm of the pupils that have taken part.

Merlin Crossingham, Creative Director at Aardman Animations said:

Molly was playful and inventive with Aardman’s own Intellectual Property (IP) taking some of our leading characters and delivering a simple but engaging piece of animation. I appreciate the skill that has gone into this film as animated walks are notoriously tricky to get right. Molly also made good use of the music to punctuate and motivate the action.

Daniel Morgan, Year 11 Progress Manager, Bedwas High School said:

We, at Bedwas High School, were extremely pleased and excited to hear of Molly’s Cracking Ideas competition victory and wish to congratulate her wholeheartedly on such an excellent piece of work. We have been aware of her talents in this area for some time and I was personally thrilled to hear of her winning such a prestigious competition with such an excellent prize attached to it.

Pupils from Bedwas High School

Notes to editors

  1. The IPO is responsible for IP rights in the United Kingdom, including patents, designs, trade marks and copyright.

  2. Aardman, based in Bristol (UK) co-founded and run by Peter Lord and David Sproxton, is a world leader in animation. It produces feature films, series, advertising and digital entertainment for both the domestic and international market. Their multi-award winning productions are novel, entertaining, brilliantly characterised and full of charm that reflects the unique talent, energy and personal commitment of the very special people who make up the Aardman team. The studio’s work is often imitated and yet the company continues to lead the field producing a rare brand of visually stunning and amusing independent and commercial productions www.aardman.com.

Source: UK IPO News

Press release: Ysgol Gymraeg Pwll Coch wins visit from Wallace & Gromit Animators

The competition, set up by the UK Intellectual Property Office, aimed to inspire creativity amongst the younger generation. It coincided with the 40th anniversary of Aardman, the company behind Wallace & Gromit, Shaun the Sheep, and Morph.

The competition involved:

  • 4-7 year olds designing a birthday present for Shaun the Sheep
  • 8-11 year olds creating a storyboard about Wallace and Gromit’s trip to outer space
  • 12-16 year olds making animated videos wishing Aardman a happy 40th birthday

An entry by Chianteyah Actie aged 9, led to the school winning a workshop with highly skilled Aardman animators for her entire class.

Chianteyah Actie competition entry

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Baroness Neville Rolfe, Minister of State for Energy and Intellectual Property, said:

I congratulate the pupils of Ysgol Gymraeg Pwll Coch for their hard work and imagination and for winning this national competition.

The UK’s creative sector makes a huge contribution to growth and innovation. I have been very impressed with the talent on show and the enthusiasm of the pupils that have taken part.

Merlin Crossingham, Creative Director at Aardman, said:

Chianteyah has created a story that neatly explains the process of taking an idea from concept through to completion. Her idea fits perfectly with Wallace & Gromit. It feels to me like she thought very carefully about how her idea about developing an idea fits into the Wallace & Gromit world.

Christopher Newcombe, Headteacher, Ysgol Gymraeg Pwll Coch, said:

I am proud and delighted that Chianteyah has won this competition and that her creative skills have been recognised in this national competition. The workshop prize will be an amazing opportunity for Chianteyah and her classmates to enjoy and develop further creative skills.

Notes to Editors

  1. The UK Intellectual Property Office is responsible for Intellectual Property (IP) rights in the United Kingdom, including patents, designs, trade marks and copyright.

  2. Aardman, based in Bristol (UK) co-founded and run by Peter Lord and David Sproxton, is a world leader in animation. It produces feature films, series, advertising and digital entertainment for both the domestic and international market. Their multi-award winning productions are novel, entertaining, brilliantly characterised and full of charm that reflects the unique talent, energy and personal commitment of the very special people who make up the Aardman team. The studio’s work is often imitated and yet the company continues to lead the field producing a rare brand of visually stunning and amusing independent and commercial productions www.aardman.com.

Source: UK IPO News

The Unreal Campaign Educates Students in Argentina

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On Friday, November 4, 2016, I participated in an INTA Unreal Campaign event at San Tarsicio School in the neighborhood of Recoleta in Buenos Aires, Argentina. San Tarsicio School is a middle throughhigh Catholic school. I led the Unreal presentation before an audience consisting of 18 teenagers of 16–17 years old, the teacher, and the principal. During the hour-long presentation, we displayed the Spanish version of the presentation as well as three Unreal Campaign videos. 





Because the class was small, we had the chance to have a dynamic and participative discussion with the students. 





By the end of the event, the teenagers understood the concept of trademarks and counterfeit products and the consequences of buying counterfeit goods. The students were surprised—and quite interested—to learn about the possible dangerous consequences of counterfeit goods.  





Finally, we are convinced that the teenagers at the presentation became aware of the importance of buying real products—one of the main goals of our campaign!





To learn more about the Unreal Campaign, please visit our landing page. Thank you to the 2016 Campaign sposnors, Tilleke & Gibbins, for making these educational events possible. 
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Published: 11/25/2016 7:16 AM
BlogTag: Unreal Campaign; Argentina

Source: TM NEWS