Blocked on April Fools Day

I have blogged recently about my notion that the fake press release may be my genre of choice. All my life I have yearned for a creative outlet, and I have been too clumsy and inarticulate to express myself - but the fake press release, that may just be my métier.



Given my choice of art form, you'd think that April Fools Day would be my Day of The Year, my personal Christmas, New Years, and Fourth of July all rolled into one.

I've hit a creative wall, a mocker's block. The press releases that other people are putting out tremendously exceed my ability to make stuff up.

You just can't make up stuff that good. Maybe we're all April Fools.

Also, James Fallows on a similar topic.
The IPKat is pleased to announce the appointment of a seventh member of its team, and a very special member he is too. Now that the formal approval of the World Intellectual Property Organization (WIPO) Coordination Committee has been obtained, following an out-of-cycle meeting that was convened late last month, the path has been cleared for the organisation's Director-General Dr Francis Gurry to assume the mantle of the GurryKat.

The Doc, as WIPO
Director General ...
The terms under which Francis has been permitted to contribute to this weblog are strictly circumscribed: he may not comment on specific provisions of national law of WIPO Member States; nor may he discuss (i) matters which are the subject of review by the organisation’s Standing Committees, (ii) topics that have been placed on the Agenda of the General Assembly or (iii) any matter that properly falls within the scope of the organization’s Development Agenda. Francis has however been given the go-ahead to post items relating to the provision of mediation and dispute resolution services, the value of intellectual property rights in social, cultural and economic dialogue between nations and the aspirational role played by intellectual property in incentivizing the next generation of young creators.

... and as readers of this blog
will meet him
Prima facie it seems surprising that the Director General of a United Nations agency should be prepared to expose his thoughts to the robust forum of thought which is the intellectual property blogosphere. In retrospect, however, one can see why Dr Gurry would have agreed. While he is a career diplomat who respects the rules and conventions which that role demands, those close to his office say that he has in recent months been seen to have been showing signs of being a visionary in his field, a role that is difficult to fulfill within what the IPKat and Merpel would regard as the chafing confines and stifling etiquette of the diplomatic environment in which he dicharges his official functions.

Geneva-based journalist, international institution expert and WIPO-watcher Chad R. Bocks, a keen observer of diplomatic trends, has reacted by confessing to “giddy anticipation” over the news of Gurry’s appointment. “When they take the step of letting an inventive visionary of Dr Gurry’s calibre stretch his intellectual wings, we will all finally understand the patent’s true place in the universe. He’s an industrious thinker, but don’t expect a novel,” he said. “Now that’s letting the spiritual leader of the creative industries get creative!”

In a presumably unrelated development, the WIPO Council has approved in outline the establishment of a two-tier “watch-list”: there would be an “A-List” of intellectual property weblogs which are considered to be potentially harmful to the intellectual property environment and a “B-List” of those which are seen as being positively detrimental to the aims and objectives of rights protection.

Weblogs on the “A-List” will be monitored by a panel of peers for signs of deviation from the generally agreed norms of intellectual property blogging. Egregious breaches of these norms will be met by the issue of a warning notice. Under a proposed “three strikes” policy, any blog receiving three such warnings will be transferred to the “B-List”. It is intended that weblogs placed on the “B-List” may only be accessed by clicking through a front page which carries an IP “health warning” that its contents are contrary to good intellectual property policy and morals. If there is any further infraction, the weblog will be taken down and the blogmeister will be ordered to undergo an initial six-month period of rehabilitation in which he will be required to read a prescribed list of corrective materials which reportedly will include all publications that emanate from the WIPO Press Room.

In response to a request for further information made by William New of the excellent and ever-reliable Intellectual Property Watch, which is based locally in Geneva, a spokesperson --who asked not to be identified by name --  explained that neither list has yet been ratified, but possible blogs for inclusion on the “A-List” include Howard Knopf’s Excess Copyright, which is known to have targeted the much-admired United States ‘301 reports’, Gene Quinn’s IP Watchdog (for shameless self-promotion) and Marty Schwimmer’s Trademark Blog for persistently applying humour to serious issues and vice versa.  Favourites for inclusion on the “B-List” are the Lessig Blog, which is generally held responsible for undermining copyright values among impressionable young readers and remains visible nearly two years after its author went into hibernation, Against Monopoly, for allegedly defending the right to innovate, and the IPKat for its persistent criticisms of WIPO’s failure to protect the rights in its own logo [“surely some mistake!”, whimpers Merpel].  Implementation of these proposals may be accelerated to ensure that they govern blogposts from the GurryKat, who has affirmed his willingness to be bound by WIPO's weblog protocol.

For further particulars of these WIPO-related developments, click here
In "Minnow Microsoft v the Google Giant", posted on the BBC website today, Rory Cellan-Jones writes on the competition-based complaint lodged by Microsoft with the European Commission. He explains:
"It's a familiar story - a scrappy little underdog launches a competition complaint in Brussels about the giant that dominates its industry. Ten years ago it would have been Netscape accusing Microsoft of abusing its monopoly power - today it's Microsoft charging Google with the same crime.

Microsoft's first ever competition complaint is not just a wonderfully ironic turn of events, it's a measure of how the balance of power on the web has shifted. A decade ago control of the desktop and what applications lived on it was still all important - now it's the control of search which delivers huge power and billions of advertising dollars to Google.

... Microsoft is determined that its Bing search engine should make serious headway. In Europe at least, that's not happening. According to Microsoft, Google has 95% of the search market. Now it claims that Google is using its power unfairly to maintain that dominance. Its complaint - which as Google points out is just an addition to an existing antitrust case in which a Microsoft subsidiary was already a complainant - is that the search company is putting walls around content that rivals need if they are to compete.

In a long blog post, Microsoft's chief legal counsel Brad Smith outlines a series of areas where he says Google is impeding competition. He claims that it's very difficult, for example, for rivals to get proper access to YouTube - owned by Google - for their search results.

He points to the Google Books plan - blocked by a US court last week - as another case where any other search engine will get poor access to valuable content, in this case millions of books.

And he says that Google uses its business relationship with leading websites to block them from installing competing search boxes on their sites. ..."
This member of the IPKat team is not surprised.  He has been telling his friends for the past four years that the only thing that can stop Google taking over the world, if people want to stop it doing so, is to focus on its crushingly powerful market position.  It is effectively impossible for any other business to compete with the combination of forces -- Google Book, Chrome, YouYube, AdWord and AdSense -- which together will inexorably drive so much individualised information into its marketing and advertising facilities that no other electronic or printed media will be remotely able to provide value for the money advertisers are prepared to spend in marketing their goods and services.

Is there a solution? It has always been axiomatic in European competition terms that the existence of a dominant position in a marketplace is not harmful unless it is abusive, but Google is so ominpowerful and omnipresent, and is such an essential facility for all traders in all markets at all times, that there is no way to deal with it other than by breaking it up into lots of Baby Googles that will be forced to compete with one another, by analogy with the Baby Bells and Standard Oil.

Goo-Goo Baby here
It's time for to leave Wonderland
and enter the real world
Taking a stroll along the cyber-highway this afternoon, the IPKat chanced upon this little gem from the Curia website of the Court of Justice of the European Union:

"Disclaimer and warning

The texts and information contained in the Court's internet site are available free of charge for the purposes of public information.

The texts of the judgments, orders, Opinions and notices present on the site are subject to amendment; only the versions published in the "Reports of Cases before the Court of Justice and the Court of First Instance" or the "Official Journal of the European Union" are authentic [That is so unhelpful.  It takes an astonishingly long time to turn a piece of text which is good enough to post online into a printed document.  In last week's ruling of the ECJ in Case C-552/09 P Ferrero the court referred to two of its earlier decisions, C-398/07 P and C-57/08 P, decided on 7 May 2009 and 11 December 2008 respectively -- and both still unreported].

The information and texts available on this site may be reproduced provided the source is acknowledged [How must this be acknowledged? Is a direct hyperlink sufficient, or is there a preferred format for online and printed reproductions?]. Readers should be aware that certain parts of such information and texts might be protected under intellectual property law, in particular by copyright [Readers should also be aware that the fact that accessed material may be protected by IPR, and in particular copyright, does not mean that any unauthorised use constitutes an infringement of any such rights].
Links to the pages on this site are permitted provided that:

- the browser window does not contain any information other than that of the page of the present site to which the link is made and its address; [The IPKat is happy to oblige, but Merpel can't help wondering as to what provisions of European Union or national law Curia might wish to evoke if this condition was not fulfilled]

- none of the information provided on this site is modified [Hmm, sniffs Merpel, it does say earlier that the site's contents are "subject to amendment", but it doesn't say by whom!]".
This member of the IPKat team lives in the present, and considers that life's too short to wait years and years for the printed versions of ECJ and General Court rulings.  Since the courts themselves are content to rely on the non-authentic versions which they continue to cite, we shouldn't lose too much sleep over it either. 

Merpel adds, material published in the Official Journal of the European Union might be authentic and only a month or two behind the actual rulings, but on the whole it's useless for any legal purposes.  An example taken at random is the official and presumably authentic note of a General Court decision from 11 February 2011, published online in the Official Journal on 24 March here:
Judgment of the General Court of 15 February 2011 — Yorma's v OHIM — Norma Lebensmittelfilialbetrieb (YORMA’S)


(Case T-213/09) ( 1 )

(Community trade mark — Opposition proceedings — Application for the Community figurative mark including the word element ‘yorma’s’ — Earlier Community word mark NORMA — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

(2011/C 95/11)

Language of the case: German

Parties

Applicant: Yorma’s AG (Deggendorf, Germany) (represented by: A. Weiß, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Schäffner, acting as Agent)

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Norma Lebensmittelfilialbetrieb GmbH & Co. KG (Nuremberg, Germany) (represented by: A. von Welser, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 20 February 2009 (Case R 1879/2007-1), concerning opposition proceedings between Norma Lebensmittelfilialbetrieb GmbH & Co. KG and Yorma’s AG

Operative part of the judgment

The Court:


1. dismisses the action;


2. orders Yorma’s AG to pay the costs.
There's no clue as to what the basis for the decision is, yet it's that which might tempt someone to look at the decision in the first place.  There's no link to the decision against which the appeal is made, and which will contain (i) the facts, (ii) the arguments and (iii) an illustration of the figurative mark -- all of which are more important for the reader than the padded pomposity of the defendant's full name ("Office for Harmonisation in the Internal Market (Trade Marks and Designs)") -- a name by which this Kat has never heard any of its employees refer to it in conversation.

It's 2011 and we're in a different world from 1952, when the Official Journal's most distant predecessor was first published -- yet series remains obstinately unchanged.  Let's have some joined-up thinking between the Curia and the Commission as to what functionality its official publications should have, what its users' interests are, and what are the trade-offs when trying to achieve the right balance of speed, accessibility, reliability and that great proportionaliser, cost.
The Court of Justice of the European Union is being kept very busy by intellectual property matters these days. Today's batch of Curia posts includes the Advocate General's Opinion in Case C‑190/10 Génesis Seguros Generales Sociedad Anónima de Seguros y Reaseguros (GENESIS) v Boys Toys SA and Administración del Estado, a reference for a preliminary ruling from Spain.

The question has been published in English:
"May Article 27 of Council Regulation ...40/94 ... on the Community trade mark be interpreted in such a way as to enable account to be taken not only of the day but also of the hour and minute of filing of an application for registration of a Community trade mark with OHIM (provided that such information has been recorded) for the purposes of establishing temporal priority over a national trade mark application filed on the same day, where the national legislation governing the registration of national trade marks considers the time of filing to be relevant?".
The AG's Opinion alas, is in a smattering of Euro-tongues, including Latvian -- but again not in English. The French version reads like this:

«En l’état actuel du droit de l’Union, l’article 27 du règlement (CE) nº 40/94 du Conseil, du 20 décembre 1993, sur la marque communautaire, exclut qu’il soit tenu compte, au‑delà du jour de dépôt de la demande de la marque communautaire, également de l’heure et de la minute dudit dépôt.»
With the aid of Google's translation service this reads:

"In the current EU law, Article 27 of Regulation (EC) No 40/94 of 20 December 1993, the CTM, it does not take into account beyond the date of filing of the CTM, also an hour and minute of that deposit".
We get the message.  Merpel adds, this was no easy question, it seems.  The AG needed nearly 80 paragraphs and over 40 footnotes ...
A man draws the Japanese flag on the asphalt in central Bucharest March 25, 2011, during an event paying tribute to the victims of the earthquake and tsunami in Japan.Credit: Reuters/Bogdan Cristel
Japan's cataclysmic earthquake and tsunami, which shattered towns and altered its coastline, may also have an impact on time in the country.

Japan may shed its decades-old allergy to daylight savings time in an effort to cut down electricity usage as it struggles to cope with a drop in power output after the strongest earthquake in its history on March 11 triggered a huge tsunami that knocked out a nuclear power plant.

The magnitude 9.0 quake was so powerful it shifted the coastline eight feet to the east around its epicenter in the northeast, the U.S. Geological Survey said.

Chief Cabinet Secretary Yukio Edano (right) said Friday the government would begin estimating the impact and cost of adopting daylight savings and how much support it would get from the private sector.

Japan has had to implement rolling blackouts after the double disaster crippled the Fukushima Daiichi (after earthquake and tsunami on left) nuclear plant near the epicenter. The mismatch between supply and demand is set to widen in Japan's summer when electricity usage traditionally peaks with the use of air conditioners.

Clocks are set one hour ahead in daylight savings time to give the day more natural daylight, thus helping to alleviate the need for artificial lighting. The sun appears to rise one hour later in the morning and set an hour later in the evening.

Daylight savings, briefly introduced in Japan during the U.S. occupation after World War Two, has had a handful of advocates, but until now no serious government consideration.

Opponents have cited various reasons, ranging from fears that setting the clock forward in the spring and back in the autumn would result in something akin to jet lag, to union concerns it would lead to longer job hours, given unspoken workplace practices that frown on going home before dark.

Another hurdle is lingering bad memories after it was implemented during the Occupation with almost no preparation, resulting in mass confusion and dislocation.

Tokyo Electric Power Co, which supplies the greater Tokyo area, said Friday power demand would exceed supply by 8.5 million kilowatts, or about 18 percent, at the end of July. A company spokesman said that the firm had yet to estimate how much power could be saved.

"At this point we are trying to see whether the plan would be feasible or not and if it will actually be effective. We cannot come up with concrete estimates at this stage," he said.

A group of lawmakers advocating daylight savings estimated in 2008 it would save 930,000 kiloliters of crude oil -- equivalent to all the electricity used by Japan's railroads for about 10 weeks.

In the United States, estimates suggest that a one-hour change in time can save up to 5 percent of daily power consumption in large cities. Other studies, however, show that the one-hour change has but a negligible effect on energy demand and at times may increase it.

Source:
Reuters,"Japan's quake may impact daylight savings time ",accessed March 28, 2011

Why I am a volunteer advocate.....

I may have mentioned on my blog that I am a volunteer advocate.  I assist war veterans, serving and exserving members of the defence forces, and war widows, in their claims for compensation on the Dept. of Veterans' Affairs (DVA).

As well as helping them to fill out claim forms and another million forms that DVA require, I also put their case to the Veterans' Review Board in Sydney.  This is a part of the appeal process when DVA has denied them their claim.  According to Veterans Law, lawyers are not allowed to represent veterans at the VRB, because it is an informal hearing.  So I get to play Perry Mason for the day.

I've been doing this for a number of years now.  It can be rather daunting starting out, but once you have a few cases under your belt your confidence grows, and you need plenty of confidence as there is just you (and the veteran of course) against three of them... The senior member, services member, and civilian member.


I’ve met some amazing people.  A bloke who was a tail gunner in a Lancaster bomber, shot down over Europe, captured and spent 12 months in a German concentration camp.  A Korean vet who was shot twice.  WWII Blokes who served in the Middle East, New Guinea, the islands, Darwin during the bombing; and when dealing with each and every one of them I find it to be a very humbling experience.

I also deal with Vietnam Vets, exserving members of Army and Navy mostly; and even some newer guys who served in Somalia and Timor.  Boy, what these young blokes endured in Somalia is really unsettling.

I should talk a lot more about this stuff, but I am afraid you, dear reader, may think I am big noting myself.  Well maybe so, but today I had the mother of all wins at the VRB, so I going to big note myself big time.

It wasn’t quite a win, not yet anyway, but we got an adjournment and now we only have one small hurdle to overcome.

The case concerned an ex Navy/ ex RAAF guy and our aim was to get him to 100% disability pension and the gold card.  I mentioned to him that we should also have a crack at Special Rate (TPI) even though the case was weak, but hey, what did we have to lose?

He was assessed at 90% and I made submissions on assessment that were not mentioned by the delegate.  These easily take him over 60 points and 100% disability pension.  The senior member of the board queried if I was going to make any submission on eligibility for hypertension and depressive disorder  (subject to the original claim and listed now as non accepted conditions) and he seemed surprised when I told him, no.  I thought it strange that he should raise the depressive disorder but it became clearer later on why he queried me.

There are a number of proofs for TPI, the main one is the alone test.  The veteran must stop work because of his accepted disabilities ALONE.

This guy was made redundant a few years ago and hadn’t worked since. Under sec 24 of the Veterans' Entitlement Act (VEA) there is the ameliorating condition.  This is for blokes who have stopped work  because of redundancy, and then find they can’t get a job.  Now he must apply for jobs during the assessment period to satisfy the requirements of the act.  If he applied for a zillion jobs outside the assessment period technically they don’t count.  So we got him to apply for jobs.  (The assessment period is the time from when an application is made until the Commission makes a final decision).

His non accepted conditions were hypertension and depressive disorder.  Now hypertension won’t stop him from getting a job and the psychiatrist said he didn’t have depressive disorder, so that wasn’t a problem either.

In the workability report, the GP mentioned three things that stopped him from working, two of them were accepted conditions, the third was anxiety/depression.

The Board concentrated their questions and comments on anxiety.  Their body language confirmed to me that they were going to use the veteran’s anxiety condition to deny him TPI.  This was not an accepted condition, consequently he will fail the alone test.

I mentioned to the veteran earlier to be truthful, and he was, outlining the problems with his anxiety when he was working.  Apparently there is mention about his anxiety in his medical file, details of which I didn’t have, and which I didn’t know about.

What I did have was the psychiatrist’s report.  And I knew exactly what it contained.

Now I’ll pause here and mention that when you are doing a case it is imperative that you own the information, that is, you have read the 137 report (a document prepared by DVA which contains all evidence for the decision) many times.

It is also important to be able to read the board, looking for signs they may give away as to whether they seem to be onside and supportive of your case, or if they have made their minds up to deny the claim.  The services member, a good bloke, was saying nothing and mostly taking notes and avoiding eye contact.  The senior member, a very fair but sometime pedantic operator, seemed rather stern; and the civilian member was being her usual bitchy self.

I knew we were in for a tough fight.

I reached for the psychiatrist’s report and read the last paragraph to the board: 
“In my opinion Mr xxxx has no psychiatric diagnosis according to DSM-IV criteria...”
I went on to say that it would be very unfair to deny the veteran the claim based on the information he gave to the board about his anxiety.  Such information would not be accepted by the board in support of a claim for anxiety so it would be grossly unfair to use the veteran’s words about his anxiety to deny the claim when the psychiatrist, a qualified medical practitioner, has said he has no psychiatric diagnosis.

Silence.

The senior member asked us to leave the room while they had a little chat.

When we returned, they suggested that on current evidence the veteran would not be successful in getting special rate TPI.  They proposed an adjournment to get another opinion from a psychiatrist on his anxiety. 

So we said we’d request the adjournment.  That way we get to pick who the veteran will see – someone who is veteran friendly of course.

The board was all smiles now.

So, we still have to make the case and it hinges on what the new psych will say, but it’s lookin’ good and I’m walkin’ ten feet tall.

That’s why I do this stuff.

I'm back there again tomorrow.  I have five cases listed for April.  I'm on a roll!

Woohoo....what a buzz!

"The first step in liquidating a people is to erase its memory. Destroy its books, its culture, its history, Then have somebody write new books, manufacture a new culture, invent a new history. Before long the nation will begin to forget what it is and what it was. The world around it will forget even faster. . . . The struggle of man against power is the struggle of memory against forgetting."
     The Book of Laughter and Forgetting, 1979
     Milan Kundera, Czechoslovakian, born 1929.

The Governor of Maine, a small and unaccomplished man whose name shall not be documented here, has chosen to pursue his sponsor's agenda by stripping artwork and renaming conference rooms at Maine's Department of Labor. This is no different from the Soviet manipulation of history by doctoring official photographs to remove the fallen from the public's eye, so that the public will forget about them and move on.

These are the offensive murals the governor is having removed:


This demonstrates the old maxim that while it takes a skilled craftsman to build a house, any idiot with a sledgehammer can knock one down.

From the inestimable Robert Reich,

[The] Maine Governor... has ordered state workers to remove from the state labor department a 36-foot mural depicting the state’s labor history. One panel shows my predecessor at the U.S. Department of Labor, Frances Perkins.

The Administration is also renaming conference rooms that had carried the names of historic leaders of American labor, as well as former Secretary Perkins. The Governor’s spokesman explains that the mural and the conference-room names were “not in keeping with the department’s pro-business goals.”" ...

Frances Perkins was the first woman cabinet member in American history. She and her boss, Franklin D. Roosevelt, came to office at a time when average working people needed help – and Perkins and Roosevelt were determined to give it to them. Together, they created Social Security, unemployment insurance, the right of workers to unionize, the minimum wage, and the forty-hour workweek.

That’s why the current Republican assault on workers – on their right to form unions, on unemployment insurance and Social Security, on public employees, and even (courtesy of [the] Governor) on our common memory – is so despicable. ...

Governor, you might be able to erase some of Maine’s memory, but you’ll have a hard time erasing the nation’s memory – even if it’s not in keeping with your pro-business goals.


The Maine Governor's intention is to erase the memorials to labor leaders, to erase the memory of a labor movement, in order to advance his sponsor's agenda. When you remove the names, the artwork, and the statues; when you revise the history and the schoolbooks, as the generations pass the memory fades. He would like the memory of Frances Perkins to fade away.

Frances Perkins, RIP

From Wikipedia:
With The Social Security Act [Frances Perkins] established unemployment benefits, pensions for the many uncovered elderly Americans, and welfare for the poorest Americans. She pushed to reduce workplace accidents and helped craft laws against child labor. Through the Fair Labor Standards Act, she established the first minimum wage and overtime laws for American workers, and defined the standard 40-hour work week. She formed governmental policy for working with labor unions and helped to alleviate strikes by way of the United States Conciliation Service.

She achieved statewide prominence as head of the New York Consumers League in 1910 and in that position she lobbied with vigor for better working hours and conditions. In 1911 she was an eyewitness to the Triangle Shirtwaist Factory fire, a pivotal event in her life.

Having earned the cooperation and respect of various political factions, Perkins ably helped put New York in the forefront of progressive reform. She expanded factory investigations, reduced the workweek for women to 48 hours, and championed minimum wage and unemployment insurance laws.

The Frances Perkins Building in Washington DC, the headquarters of the United States Department of Labor, was named in her honor in 1980. Perkins is also honored with a feast day on the liturgical calendar of the Episcopal Church (USA) on May 13.


Holy Laity, Batman, She's got a Feast Day named after her!

Repositioning Child Labor

Maine's Republican legislature is developing legislation to reduce child labor protections:
The minimum wage in Maine is $7.50 an hour, and there is no training or subminimum wage for students. But under a new piece of legislation introduced in the state's House of Representatives, employers would be able to pay anyone under the age of 20 as little as $5.25 an hour for their first 180 days on the job.

The bill, LD 1346, also eliminates the maximum number of hours a minor 16 years of age or older can work on a school day and allows a minor under the age of 16 to work up to four hours on a school day during hours when school is not in session.


I would like to restate for clarity: Frances Perkins worked for the 40-hour work week, minimum wage, unemployment insurance, and overtime; she was against workplace accidents and child labor. The Republican governor wants to remove all traces of her memory, set wages for young workers below the minimum wage, and let under-16 kids work up to four hours every school night.


The Governor may rename the building and the rooms, and the task of preserving the memory of the labor movement and the memory of Frances Perkins may fall upon others who do not have the means to name buildings and offices. We can only hope that the Streisand Effect will perversely thwart the governor's intention.

There are other ways to preserve a memory. A song can be an effective means of memorializing a person or a movement. "Let me write the songs of a nation, and I care not who makes its laws."
*
Let's consider the story of union organizer and song writer Joe Hill.

Joe Hill


Joe Hill (1879 – 1915) was a Swedish-American labor activist, songwriter, and member of the Industrial Workers of the World (IWW). He learned English during the early 1900s while working itinerant industrial jobs across America.

Hill became a respected song writer for the workers' association. His most famous songs include "The Preacher and the Slave", "The Tramp", "There is Power in the Union", "Rebel Girl", and "Casey Jones: Union Scab", which generally express the harsh but combative life of industrial workers.

In 1914, Hill was accused of the murders of two prominent citizens. Hill, who had a gunshot would, declined to give an alibi; he explained the wound as the consequence of a dispute. Contemporaries suggested that Hill declined to make public his alibi (an assignation with a married woman) in order to protect her. He was convicted in a controversial trial with changing testimony. Following an unsuccessful appeal, political debates, and international calls for clemency, Hill was executed in November 1915.




The struggle of man against power is the struggle of memory against forgetting.
Don't let them re-write history and erase the memory of the labor movement.
Apart from the light-bulb symbolism
on the cover, this book has much
to commend it to the busy reader
The IPKat has been perusing the second edition of Essentials of Intellectual Property, by Alexander I. Poltorak and Paul J. Lerner (both of General Patent Corporation).  Given the versatility and indeed the enthusiasm of the pair, it is unsurprising that the book's cover bears the subtitle 'Law, Economics and Strategy', these being but three of the many disciplines which the authors illuminate for the business reader (they can do algebra too, but 'Law, Economics, Strategy and Algebra' might be a bit too off-putting for the target readership).

Since this book has emerged nearly a decade after the first edition, it has been treated to a major update. Considering that the years since 2002 have seen such momentous activity -- the death or obsolescence of many classic business models, the rise of trollism, the combined opportunities and threats of the internet, the Doha dilution of pharma patent expectations, direction-changing Supreme Court rulings like eBay v MercExchange as well as shifts in legal and commercial perspectives resulting from Bilski and the current raft of litigation over false patent marking, to name but a few -- it would have been impossible to avoid a big rethink.

But whatever the changes, the things that remain the same have to be rammed into the reader's consciousness and it is the virtue of this book that it does just that.  Go where the money is, be prepared to share in order to grow, check how much protection you need in order to fulfill your objectives, watch out for your own liability as well as that of others -- these are among the messages that the author transmit.  For the record, this new edition includes
• Latest changes to patent law and IP best practices;
• Two all-new chapters, one on recent patent reform legislation and a second on precedent-setting lawsuits;
• Basics of patents, trade marks, copyrights, trade dress and trade secrets, specifically written for busy executives
• Methodologies of patent valuation;
• DOs and DON’Ts of patent enforcement;
• Samples of useful documents, eg a non-disclosure agreement, invention assignment form, invention disclosure form and IP audit questionnaire.
It's not a law textbook -- but it is a fun read and a very informative one. In the olden days this Kat would have taken it to read cover-to-cover on a long flight, but nowadays it takes so long to get through security that he could probably read most of it then.  The algebra is near the end, so you can pretend it isn't there ...

Bibliographic data.  Published by John Wiley & Sons, Inc. Paperback. xxviii + 292 pages. Price: US$ 45. ISBN 978 0 470 88850 6. Available also via Amazon.com in Kindle format and via Barnes & Noble as a NOOKbook. Rupture factor: no problems.


From Bloom to Bloomsbury -- it's IP in Ireland
Not a second edition this time but a third, and also not a moment too soon, is Intellectual Property Law in Ireland, crafted by a talented trio of the IPKat's friends -- distinguished academic Bob Clark, plus that amiable pair of practitioners from FRKelly, Shane Smyth & Niamh Hall.

Only six years after its predecessor, this edition has had to run very fast to keep up with events.  The rapid unfolding of developments in the European Union and its Court of Justice, the Irish version of the "three stripes" saga and some bonny battles over fashion design have provided some of the reasons for this need. Anyway, according to the publisher's blurb, 

"This is your single-source expert guide to intellectual property law. fully updated to the key changes that have taken place in this area of law since the publication of the 2nd Ed in 2005, together with all relevant case claw. 
This unique book deals with intellectual property law in its entirety, providing a single, practical and all-embracing information source covering the main aspects of intellectual property law. The expert coverage includes copyright, trade marks, patents and design law".
The IPKat feels that the publishers could have done a bit better than this.  They could have pointed out that there is an increasingly significant body of reported Irish IP law these days. They could have added that, while much of the past tense of Irish is made up of British precedents, and an even larger proportion of its future tense is European, Ireland is very much its own country with its own style and tempo of dispute resolution, its own approach to administration and official procedures, its own interpretative nuances, its own professions and its own domestic market.  The authors have worked hard to provide a reference work which is readable, accessible and -- for the reader who frets over whether European norms of protection and enforcement are adequately implemented -- increasingly reassuring.

Bibliographic data:  Hardback.clvii + 1080 pages. Price  €180/£150. ISBN 978 1 847 66366 5. Book's web page here. Rupture factor: severe (particularly for leprechauns ...)
Wishing profoundly that he had been able to master any modern European language other than his own, ths member of the IPKat team draws the attention of his readers to Affaires C‑509/09 et C‑161/10 eDate Advertising GmbH v X and Olivier Martinez et Robert Martinez  v Société MGN Limited.  The Advocate General of the Court of Justice of the European Union gave his Opinion this morning and the Kat thinks he might be sniffing at something with some degree of IP significance, since the words "copyright", "information", "right of personality" and "reputation" crop up.  The AG recommends the Court to rule that
«1) L’expression ‘lieu où le fait dommageable s’est produit ou risque de se produire’, utilisée à l’article 5, point 3, du règlement 44/2001 du Conseil, du 22 décembre 2000, concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale, doit être interprétée, en cas d’atteinte à des droits de la personnalité par le biais d’informations diffusées dans plusieurs États membres par l’intermédiaire d’Internet, en ce sens que le titulaire du droit de la personnalité peut engager une action en dommages et intérêts

– devant les juridictions de l’État membre du lieu d’établissement de l’éditeur de la publication ayant porté atteinte aux droits de la personnalité, qui sont compétentes pour réparer la totalité des dommages découlant de l’atteinte auxdits droits, ou bien

– devant les juridictions de tout État membre dans lequel la publication a été diffusée et dans lequel le titulaire du droit de la personnalité affirme avoir subi une atteinte à sa réputation, qui sont compétentes pour connaître uniquement des dommages causés dans l’État membre de la juridiction saisie, ou bien

– devant les juridictions de l’État membre dans lequel est situé le ‘centre de gravité du conflit’ entre les biens et intérêts en jeu, qui sont ainsi compétentes pour réparer la totalité des dommages découlant de l’atteinte aux droits de la personnalité. On entend par ‘État membre dans lequel est situé le “centre de gravité du conflit”‘celui sur le territoire duquel l’information litigieuse est objectivement et particulièrement pertinente et où le titulaire du droit de la personnalité a également le ‘centre de ses intérêts’.

2) L’article 3 de la directive 2000/31/CE du Parlement européen et du Conseil, du 8 juin 2000, relative à certains aspects juridiques des services de la société de l’information, et notamment du commerce électronique, dans le marché intérieur doit être interprété en ce sens qu’il n’impose pas une règle de conflit de lois ni un «correctif sur le fond». Ladite disposition concrétise l’harmonisation législative de la libre prestation de services appliquée au commerce électronique, en autorisant en même temps les États membres, dans le cadre de la marge d’appréciation que leur confère ladite directive, ainsi que l’article 56 TFUE, à prévoir des mesures de protection des intérêts dignes d’une garantie spéciale, à titre d’exception à la libre prestation de services.».
This translates mechanically into

""(1) The term 'place where the harmful event occurred or may occur', as used in Article 5(3) of Regulation 44/2001 of 22 December 2000 , on jurisdiction, recognition and enforcement of judgments in civil and commercial matters must be interpreted, in case of infringement of personal rights through information disseminated in several Member States through Internet, in that the holder of the personality right may bring an action for damages

- The courts of the Member State governing the establishment of the publisher of the publication having violated the rights of personality, which are responsible for repairing all damages resulting from the breach those rights, or

- The courts of any Member State in which the publication was distributed and in which the holder the right personality says he suffered injury to his reputation, which have jurisdiction only damage in the Member State of court, or

- The courts of the Member State in which lies the "center of gravity of the conflict 'between the property and interests, which are thus responsible for repairing all damages resulting from the infringement of personality. Means the Member State in which lies the "center of gravity of the conflict", the one in which the information at issue is particularly relevant and objectively and where the copyright owner's personality also has the 'center of his interests '.

(2) Article 3 of Directive 2000/31/EC of the European Parliament and the Council of 8 June 2000 on certain legal aspects of information society, in particular electronic commerce, in the market procedure should be interpreted as meaning that it does not impose a rule of conflict of laws or a "patch on the bottom." [whose bottom, Merpel wonders? Her copy of the E-Commerce Directive makes no reference to backsides at all ...] That provision embodies the legislative harmonization of free services applied to electronic commerce, in the same time allowing the Member States, within the discretion conferred upon them by the Directive and Article 56 TFEU to provide measures to protect the interests worthy of a special guarantee, as an exception to the free provision of services".
Can some kind reader be of assistance?
Going Dutch: Kat and Klock
with tulip motif, here
In "Taking the PS3s ..." earlier this month the IPKat thought he had tidied up the loose ends, solved all the problems and removed all the speculation when he posted this item on the customs detention and subsewquent release of Sony Playstations, revealed that this was not the sordid bagging of a load of grubby counterfeits but the spin-off from a dispute concerning techical standards and the (non)availability of a Fair, Reasonable and Non-Discriminatory (FRAND) licence to use the Blu-Ray technology.  But events have moved on since then, as the IPKat's friend Ruprecht Hermans (Brinkhof) explains:

"On Thursday 24 March the president of the The Hague Court issued a decision in writing in the preliminary injunction proceedings between LG Electronics and Sony ...
As you will recall, LG executed a civil seizure as well as obtained a customs measure to detain allegedly infringing Playstation 3s (“PS3s”) at the Dutch border. Almost 300,000 PS3s were seized and detained for allegedly infringing LG's patents relating to the Blu-ray disc technical standard.  This standard is developed by the Blu-ray Disc Association (“BDA”), to which both LG and Sony belong. The patents are said to be essential, so a licence is needed if anyone wishes to manufacture products complying with the standard.

In his written decision the president now explains his earlier oral decision.

He gives important consideration to the by-laws of the BDA which provide that all members are obliged to grant licences under their essential patents on FRAND conditions to any interested party, including other members. Regarding the relationship between members Article 16 more in particular provides:

“(4) All Members, regardless of whether they ... join any established joint licensing program for the Essential Patents, agree that the aggregate of terms and conditions of all licences necessary under the Members’ Essential Patents shall not block, frustrate or harm acceptance of any Blu-ray Disc Format as a worldwide standard or development of products complying with any Blu-ray Disc Format or commercialization of the same.
(5) Any dispute between a Member and another Member over whether the Member is offering a licence under its Essential Patent(s) on fair, reasonable and non-discriminatory terms and conditions within the context of the provision of Article 16(4) shall be decided by a single neutral arbitrator appointed under the International Rules of the American Arbitration Association ... and will be conducted under the rules of that Association in New York City. The arbitration hearing shall take place no later than ninety days after the arbitrator is selected and a decision shall be rendered within thirty days of the completion of the hearing. In evaluating the reasonableness of the disputed terms and conditions, the Arbitrator shall take into account, among other things, terms and conditions (including but not limited to applicable licence fees) of joint licence programs and individual licence programs within the area of licensing essential patents for optical disc systems, where
(i) such terms and conditions and
(ii) such optical disc systems are generally accepted by the optical disc systems industry.”
From this and also from the general purpose of the by-laws it follows, according to the President, that the purpose of the by-laws is to commercialise the Blu-ray standard in favour of the members. This intention does not in principle fit with a situation whereby members fight each other with infringement actions:

“Such action is directly contrary to the wish to promote the use of the standard. Further, it is not unimportant that an injunction will also damage other members than the attacked party. If, for example, Sony because of an injunction cannot offer PS3 consoles, the consequence is not only that LG will not profit but that other members will also not receive royalties. Cooperation between the members is therefore solely advantageous if as many products as possible can be offered under the standard.”
According to the preliminary view of the president a relationship that is governed by the notions of “fair” and “reasonable” is irreconcilable with using the threat of injunctions and seizure as a negotiation tool.

The above makes this case different from Philips/SK Kassetten (a conflict between a member of a standard setting organisation and a third party, noted here on the excellent EPLaw).

If members cannot agree on licence terms, they are obliged to refer to the arbitration provided in the by-laws. This brings the president to the conclusion that the by-laws unavoidably lead to a licence between the relevant members and this is not reconcilable with a member taking actions which may lead to an injunction".
The IPKat says, if one assumes that LG and its legal advisers must have been aware both of the licence imperative and the arbitration provision, it seems quite astonishing that the Dutch Customs should have been asked to seize these PS3s at the border.   Merpel wonders whether Dutch law provides any remedy for other patent licensors whose entitlement to royalties under the BDA scheme would be delayed or reduced by virtue of what appears at this distance to be LG's conspicuously wrongful action.

New Amsterdam here
Fingered.  Last week, in "Coming to their Sensis: of Aussies, scams and the Yellow Peril", the IPKat featured a report on a successful, if stressful, attempt to drive a scammer off a URL which it should not have been occupying. He now thanks Nadine Courmadias (Legal Counsel, Sensis Pty Ltd) for telling him about the fake yellow page scammer's "inverted fingers" logo (reproduced, left).  The Kat wonders if the new generation of Yellow Pages customers knows why there are any fingers in its logo at all; he seems to recall a slogan, from the distant past when we all used paper products, "Let your fingers do the walking".


Not on your Nellie? Never on a Monday! In "Search Yahoo! for Elly? Not on your Nellie" the IPKat reported on a dramatic decision from the Tribunale di Roma that an internet service provider could be a contributory copyright infringer where the use of its search engine led users to sites that provided infringing versions of the movie they were seeking. It now seems that the real drama wasn't in the courtroom but in the newspaper reports. As Gaetano Dimita explains: "I finally got my hands to a copy of the Yahoo! case. I found it on Interlex.it, here.  The Italian newspaper reports were inaccurate. The action was a 'procedimento cautelare' (I think the proper translation is 'procedure for interlocutory remedies' or 'preliminary or summary judgment), not a full decision. No further reasoning will be produced. The judge, assessing the 'fumus boni juri' and the 'periculum in mora', ordered Yahoo! to remove the links to infringing websites. Yahoo! did have knowledge of the infringement as a result of notices sent by the plaintiff (PFA Film srl) and, since it did not activate its take-down procedure, it became liable. However, Google Italia and Microsoft (also parties in the proceedings) where not found liable since they did not administer their search engines directly and they were entitled to their costs".


Latest news on the battle between Louis Vuitton and Nadia Plesner (see earlier IPKat post,"Iconic IP and freedom of expression: the battle lies ahead", here, and Poll on the IPKat's side-bar), comes from Jens van den Brink (Kennedy Van der Laan), who acts for Ms Plesner. There will be a second hearing on the challenge to the appointment of the judge on 4 April, to enable the judge to react to additional grounds for the challenge. Also, a new hearing date for the injunction proceedings has been set: it's 20 April at 14:00 hours, in The Hague court.


Around the blogs.  Congratulations are due to the IP Finance weblog which, founded in January 2008, has now notched up its 900th email subscriber.  PatLit's 22nd PCC Page, "IPOff tells Cautious: “Get knotted"", can be found here, continuing the saga of cut-price, sawn-off litigation in the Patents County Court for England and Wales.  MARQUES Class 46 reports that there are still three or four places available on the "Future Plans" seminar on trade marks in Europe next week.


Casting for a star role
in the Opposition Division ...
Movie buffs take note! A YouTube video which a group of Office for Harmonisation in the Internal Market (OHIM) staff developed in order to explain the benefits of Community trade mark protection to a general audience. The project was supported by OHIM's multimedia team, but the script was developed and "acted" by volunteers drawn from various OHIM departments.  Further information is available from OHIM here.  You can also view the movie here.
Voltage coursing through electrical barriers designed to keep invasive Asian carp (left) out of the Great Lakes may need to be raised to keep out juvenile fish, U.S. officials said on Friday.

The Army Corps of Engineers has mounted a multi million-dollar effort to keep voracious Bighead and Silver Carp that now infest the Mississippi River Basin out of the Great Lakes, where scientists predict they could decimate the lakes' $7 billion fishery.


"The current barrier operating parameters are effective for fish as small as 5.4 inches in length," the U.S. Army Corps of Engineers said in a news release.

"The research published in this report
suggests that slightly higher operating parameters than those currently in use may be necessary to immobilize all very small Asian carp, as small as 1.7 to 3.2 inches in length."

Juvenile carp can swim 37 miles by the time they reach 6 inches in length.

Environmentalists and several state governments have fought to create a permanent ecological separation between the Mississippi River basin and the Great Lakes.


The U.S. Army Corps of Engineers, other federal agencies and Chicago-area governments have joined commercial shippers, sightseeing
operators and recreational boaters in an bid to keep the waterways open.

For now, officials say smaller, juvenile carp are well downstream from the three electrical barriers (right: how electric barriers work) on the canal that links the river system to the Great Lakes, so the two-volt current laid down by the barriers will be maintained.

The best estimate of a potentially reproducible population of Bighead carp is 25 miles downstream from the barriers, Charles Wooley of the U.S. Fish and Wildlife Service said.

Lock and dam structures have impeded the carp's progress, Wooley said, and agency crews will be vigilant during the summer spawning season to kill carp in the pools between dams.

A U.S. study to be completed this spring will determine the impact on barges and barge operators if the voltage in the barriers is raised to 2.3
volts, which laboratory tests show is sufficient to repel the juvenile carp.

Army Corps Major General John Peabody stressed that the voltage impact on the juvenile carp was measured in a laboratory, and "needs to be validated" in the field.

Source:
Reuters,"Great Lakes barrier may be too weak to stop carp", by Andrew Stern , accessed March 25, 2011

Diggers may march alongside Viet Cong

MORE than 2000 Australian Vietnam War veterans are expected to meet their former foes if an ambitious plan for a formal reconciliation, supported by the Gillard government, is agreed to by Hanoi.
In the most significant move to date to effect links between Vietnamese veterans and their Australian counterparts, the RSL has embarked on a low-key diplomatic push to win crucial Vietnamese government support.
If Hanoi agrees, the plan could result in Australian veterans joining a reconciliation parade with their former enemy, the North Vietnamese Army and Viet Cong, to coincide with next year's 50th anniversary of the start of Australia's decade-long involvement in the war.
While the issue is a very sensitive one for Vietnam, insiders have told The Australian there is growing optimism the Nguyen Tan Dung government will agree to the proposal.
RSL national president Ken Doolan confirmed negotiations were under way to establish formal links between the RSL and Vietnamese veterans groups, talks he described as delicate.

RSL NSW branch president Don Rowe, one of the leaders for the push for official reconciliation, said hundreds of former Vietnam veterans have been making private pilgrimages to old battlefields and the experience has almost always been positive. "(Many) have found it not only a moving experience but a healing process as well," he said.Foreign Minister Kevin Rudd has thrown his support behind the initiative, describing the proposal as a "positive development" in relations between the two countries.

Former SAS trooper and veteran Don Barnby said he supports formal reconciliation, saying Australian soldiers had immense respect for their old enemy, a very worthy foe, "tough, determined and disciplined".
For others, such as two-tour veteran Geoff Hazell, the decision to take part in a formal reconciliation is a difficult one.
"I have nothing but respect for the NVA fighting soldier," he said. "I have more personal problems with those in Australia who actively or passively supported them.

Love that last sentence!
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