A new Kat for the IPKat team

The IPKat's blogging team is delighted to announce the appointment of a seventh team member, this being none other than Catherine M. Lee.  Having qualified as a solicitor and trade mark attorney in Australia and as a solicitor and barrister in England and Wales, Catherine also holds a PhD from the University of Oxford. She currently works as a Night Lawyer for The Sun newspaper. Previous convictions include spells working for law firm Clayton Utz and the Australian Copyright Council.

A talented linguist (her familiarity with Japanese, German, French and Italian more than compensates for Jeremy's well-chronicled deficiencies in this regard), Catherine is also an expert wine-taster (she has held office as President of the Oxford University Wine Society).

Keen readers of this weblog will have noticed that Catherine has written two guest pieces for it recently, which you can sample here and here. We all look forward to more of the same, so let's give warm welcome to Cat the Kat!

Extortion, outwresting, and/or exaction is a criminal offense which occurs when a person unlawfully obtains either {money, property or services} from {a person(s), entity, or institution} through coercion.

Refraining from doing harm is sometimes euphemistically called protection. Extortion is commonly practiced by organized crime groups. The actual obtainment of money or property is not required to commit the offense.

Making a threat which refers to a requirement of money or property to halt future problems is sufficient to commit the offense. Exaction refers to extortion but also means the infliction of something (pain, suffering, enduring something unpleasant).

Neither extortion nor blackmail require a threat of violence but merely a threat used to elicit actions, money, or property from the victim. Such threats could include the filing of reports, revelation of damaging facts, etc.

The PG headline reads, "City sergeant sues owner of Station Square over bar brawl". The writing is great but the headline may be inadequate. Here's the article:
A Pittsburgh police sergeant Friday sued a Beaver County man and the owner of Station Square over an injury the officer said he suffered there in 2009 while trying to break up a bar fight.

Sgt. Craig Campbell, head of the vice unit and a veteran of the city's elite Street Response Unit, was in uniform and working a secondary employment security detail at the Saddle Ridge bar on May 3, 2009, when a fight broke out in front of the nearby Matrix Bar at about 2 a.m.

When Sgt. Campbell responded to help other officers break up the fight, he said one of the combatants, Brian Richard Grimes, 27, of Beaver, kicked him in the knee from behind. Police arrested Mr. Grimes and hauled him to jail.

Sgt. Campbell said he suffered a torn knee ligament and dislocated kneecap that has required surgery and extensive physical therapy. In the complaint, filed in Allegheny County Common Pleas Court, Sgt. Campbell accused Mr. Grimes of assault and battery and Forest City Enterprises of negligence.

[Sgt. Campbell] said Forest City, owner of Station Square, was partially liable because the company didn't hire enough security personnel to handle brawls on busy nights, putting him at risk.
According to the complaint, Forest City failed to provide adequate security despite knowledge of "heightened frequency of fights" on weekends.

Mr. Grimes was charged after the bar incident with various offenses, including aggravated assault and resisting arrest. His trial last month ended in a mistrial and a new one is coming up in the next several months, said his lawyer, Michael O'Day. . . .
I wonder if there isn't a larger story of the City of Pittsburgh allowing its police force to be hired out as security guards, providing local businesses with bouncers who, at any sign of trouble, magically transform into police officers with arrest powers and the authority to write the official version — police officers whose errors are paid for by the taxpayers and the city's insurance provider, and whose injuries are covered as if on-the-job by the City-FOP union contract.

It's a sort of reverse contracting out; instead of the city hiring private companies to provide government services, the City/FOP rents out fully-equipped, fully insured government employees to provide private services. The payment goes to the mercenaries, the politics benefit the Administration, and the liability/risk go to the taxpayers. The city (ie us) pays for all the training, uniforms, guns, bullets, Tasers, insurance, injuries, and settlements. Sweet!

Let's attempt to describe the events of "the night in question".
  • Police officer works part-time, off the clock, for private business
  • The city and union regulate, approve, and administer the arrangement
  • He's working as an independent contractor, wearing a Pittsburgh police uniform, carrying a Pittsburgh gun and a Pittsburgh radio
  • at a business down the street, some other contractors get in trouble
  • How did he know about the trouble? Pittsburgh police radio
  • He leaves his workplace to help other contractors at another site. Amazingly, in an instant they all transmogrified from private contractors into members of the FOP Pittsburgh Thin Blue Line Club.
  • He gets injured in the fight he ran over to join, and he sues the deep-pockets owner of Station Square who will in turn pass the cost along to the bar owners
  • He sues the owner of Station Square for - wait for it, wait for it - not hiring enough FOP members.
  • They arrest the kid, who is Not From Here and unlikely to have any pull. There has been no conviction (which kinda sorta means the kid is innocent).

Next time, those Station Square bars should hire more FOP members. Just saying. That's extortion. That's a shake-down, nothing more than third-world corruption. You want to run a bar? You better hire enough FOP members.

The beauty is, the FOP doesn't need to lean on the penny-ante bars directly. They just withdraw their services or file suits against the landlords, the button-down money, and then the landlords tell the bar owners to shape up and play ball. I wonder if the insurance coverage has something to do with it - if the policy says there will be off-duty cops and the FOP says No, then the business won't be making any money that night.

The PG headline might have read---

FOP Militia Leaders Extort Real Estate Company

By the way, who is responsible for the Pittsburgh Police? That would be the Mayor of Pittsburgh. Who investigates the Pittsburgh Police? That would be a panel appointed (and interrupted) by the Mayor. The Mayor (this version's name is irrelevant, it's happened before, it's the Pittsburgh machine) gains by having a tight relationship with an organized political force. The Police Department gains because this lucrative arrangement induces policemen to remain on the city's force and not leave for easier work in the 'burbs.
  • Remember when the Mayor called for (and the FOP implemented) a full-court press on public intoxication and parking violations? Remember when it disappeared as fast as it arrived, in spite of generating more revenue than it cost?
  • Is it possible that the crackdown on parking and public intoxication was actually a squeeze on the bar owners, driving their customers away in a show of force?
  • Remember the St. Patrick's Day brouhaha when the FOP threatened the city that they would withhold their efforts from their secondary assignments over a respect issue? Think about that - they threatened the city that they would stop working for private businesses? Fortunately, enough respect was paid and they were able to continue protecting the public. Glad we got past that.
  • Is it possible that the Brinksmanship Brouhaha was actually a squeeze on the bar owners, who would have lost a key business day without police "protection"?
  • Blog Staff apologizes for starting two related sentences with the word "remember", but it does allow us to sneak this in: The struggle of men against power is the struggle of memory against forgetting. (Milan Kundera)
  • Do you either of those bits of kabuki theater were anything other than a dance between the Mayor, the FOP, and the bar owners?
  • Quis custodiet ipsos custodes?

Connect the dots and you'll see that the City, the FOP, and the bar owners are all complicit in optimizing the profitable violence of public intoxication.

Pittsburgh cops are shaking down businesses.
Pittsburgh cops are beating up honor students.
There needs to be a big change.

Extra Credit Journalism Questions

There are Pulitzer-worthy stories here! Interesting extra-credit questions:
  • How much (city) paid time off did the Sgt. get for the injury on his (private) job, which "required surgery and extensive physical therapy"?
  • How much (city) paid time off (total, citywide) did police officers get in the last year for injuries from their private jobs?
  • How much money has the City paid this year in awards, settlements, and lawyer fees over police officer's outside jobs?

Today was a gorgeous day in Forbes, the weather was delightful.

After shopping in the morning, no I didn't get to the Patchwork shop, I set up my sewing machine to put together the last two blocks of my Down in the Garden BOM.  It started off well, then I had two mishaps with the cutter, pieces were cut short, more than once. 
Now I have seams on my blocks where they should not be.  Oh well  I am sure that the young girl receiving this quilt will still love it, yes she will!
I was able to put together the two blocks and fit in a walk around the lake with a dear friend and our kids. 
Now I only have to write on the stitcheries and get in to it.
Stay tuned.

The Next Ford Falcon?

Here is a picture of the 2013 Ford Taurus

If you've been wondering exactly what Ford has in mind for the next-generation Falcon, look no further than the recently revealed 2013 Taurus for a few clues. Ford design guru J Mays has officially made it clear that the look of the sedan will be transposed onto several of the automaker's other products, including models like the Mondeo and Falcon. The crew from Go Auto spoke to Mays at the New York International Auto Show last week where the designer said that the corporate look will still allow each model to flex its character.

Mays said that the design was heavily influenced by vehicles like the Audi A6 and that the new trapezoidal grille design on the 2013 Taurus will allow the vehicle's face to be easily applied to a range of products. Even so, don't expect to see exact carbon copies across the dealer lot. Mays made it clear that the design can be modified to deliver everything from an aggressive visage to a more subdued look.



Just in  case the link BOAB gives in comments doesn't work, here is the picture he is referring to...

This is BOAB's car, no wonder he rides a bike!!!

I dunno about youse blokes but we watched the BBC version of the wedding.

I thought it was great.

I liked the simple nature of the wedding party.  The obvious delight they share with each other.  The fact that they EMBRACED tradition.

Tradition, there's nothing wrong with that.

We don't have much tradition left in Australia, we are giving it all away so that the newcomers wouldn't feel unwelcomed.
 Victoria calls for "actual cooperation, not just
fluffy conversation at the top level"
The IPKat's final report on the Fordham IP Conference brings you news of the keynote address of Victoria Espinel, the White House Intellectual Property Enforcement Coordinator (IPEC). "What a difference a year makes", she said as she compared her somewhat sparse message at the conference a year ago with the cornucopia of exciting news that she conferred upon the corresponding audience this lunchtime.

Having compressed her one-year allocated for crafting a strategic plan into just six months, Victoria told us how much effort has gone into seeking consensus -- an effort which has borne fruit in uniting business and labour, Democrats and Republicans and all sorts of other warring factions in support of a vigorous pro-IP policy at home and abroad.  Dialogue, not consultation, is her aim, and she maintains it with the Department of Justice, the Department of Commerce, Immigration and Customs Enforcement and other concerned bodies (a total of 17,000 Federal employees are apparently involved in IP enforcement issues of one sort or another).

A rare sight at Fordham: Hugh Hansen unable
to interrupt a speaker. What might be be thinking ...?
Asserting that the US must lead by example, Victoria declared that the best place to start is at home, making sure that Federal procurement involves only lawful product and proper software licences, keeping all infringing goods out of the Federal supply chain.  She also emphasised the need to help US businesses overseas by deploying personnel on foreign soil, notably China -- where many US businesses require guidance and assistance in seeking to protect and enforce their IP rights.  Other activity she mentioned included the proposal for raising the penalty for trade secrets theft via a new industrial espionage bill, and the In Our Sites initiative which is said to be achieving highly positive results in its early stages, with four crackdowns on rogue websites resulting in the seizure of 100 or so domain names.

Victoria's message was a positive and impressive one, quite at odds with some of the downbeat assessments privately expressed by some of the conference participants about having to learn to live with a level of infringement that we can't bring down.  It is a message which the IPKat will be taking back to England with him and which he looks forward to drawing to the attention of the All Party Parliamentary Intellectual Property Group (here) next month.
Today's programme opened with a sunrise seminar at 7.30am on the subject "Rule of Law on the Internet: Feasible or Fantasy?", chaired by renowned IP scholar and jay-walking analyst Hugh Hansen. The keynote address was delivered by Richard Cotton (NBCUniversal Media), who listed five axiomatic propositions:
  • There was a need to move forward in terms of internet rule of law, since we can't stay where we are;
  • Any solution to current problems of content control must be rooted in the technology of the internet itself;
  • Regard must be have for the ecosystem, particularly with regard to (i) the way law enforcement bodies work and (ii) the roles played by creators of the broadband internet infrastructure (here Richard drew an analogy with the role played by banks as conduits for money-laundering -- they had to be brought into the problem-solving process);
  • Due regard must be had for competing interests and values, such as privacy, access to information and freedom of expression;
  • It is unrealistic to talk of a 100% successful solution, and it is more important to identify a broadly workable one.
This sparked off a good deal of discussion from the large body of panellists, most notable of whom was Andrew P. Bridges (Winston & Strawn LLP).  Like Richard, Andrew also thinks in units of five.  He argued that the rule of law was based upon the pillars of consistency, universality, shared values, respect and fairness. Any solution to the problem of unrestricted copying of internet-accessed material which failed to meet those requirements was illegitimate and would be doomed to fail. 
Mr Justice Peter Charleton then reminded the session that, while much debate was centred on US law and practice, the European Union was also in existence -- with its own political and legal structures and its own debate.  He outlined the Advocate General's Opinion in the Court of Justice reference in Scarlet Extended (see note here), which appeared to favour the interests of anonymous internet users and internet service providers over copyright owners, and had some kind words for the approach at present adopted in the United Kingdom via the Digital Economy Act (on which see earlier IPKat post here).

IPKat team member Jeremy added a few words about Europe too. He mentioned the parallel existence of the European Court of Human Rights, which has recognised IP rights but has not asserted them ahead of rights of privacy or freedom of expression. He also explained how the Pirate Party now had two members of the European Parliament and that the debate over copyright on the internet was thus being engaged in a rather different manner from that of the United States. Finally he observed that, with the rise of the social media, many providers of user-generated internet content had something of a contradictory attitude towards copyright; they were happy to help themselves to the works of others, but expected their own photos, emails, tweets and other product to be safe from unauthorised use or distribution.
Ah, Kate. God bless her. She's no Diana, to be sure, but she's no Fergie, either. We hope.

So the public mind, such as it is, turns from energy and economy, weather and wars, to dwell as any attention-deficient schoolboy would on a shallow, fleeting infatuation with The Royals, which I submit to you is un-American, and - viewed in the long term - treasonous, in a "giving comfort to the enemy" sort of way.

Who are these people except the intermarried feeble descendents of dwindling monarchies, who do no work and produce no product and yet draw their sustenance from those who do? The British inclination to grovel and scrape to these professional parasites is so irrational as to betray the Renaissance and the Age of Enlightenment, and to make nearby France seem a model government; and the notion of putting these reprobates in charge of their religion is beyond explanation.

Americans, when they realize who they are, reject Monarchy, Kings, hereditary positions, and privilege by birth. (The Bushes, the Clintons, the Kennedys, and the Pauls notwithstanding.)

We Americans once wrote down our grievances with the British king (george):
Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
  • He has refused his Assent to Laws, the most wholesome and necessary for the public good.
  • He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
  • He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
  • He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
  • He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
  • He has refused for a long time, after such disolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
  • He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
  • He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
  • He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
  • He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
  • He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
  • He has affected to render the Military independent of and superior to the Civil power.
  • He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
    • For Quartering large bodies of armed troops among us:
      For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
    • For cutting off our Trade with all parts of the world:
    • For imposing Taxes on us without our Consent:
    • For depriving us in many cases, of the benefits of Trial by Jury:
    • For transporting us beyond Seas to be tried for pretended offences
    • For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
    • For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
    • For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

  • He has abdicated Government here, by declaring us out of his Protection and waging War against us.
  • He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
  • He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
  • He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
  • He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

The American Revolution was fought to free us of these parasites, and the notion that 235 years later we would show interest in their serial couplings and progeny is a damning puzzlement.
Kylie has bought the fabric she is going to send to me for her quilt.  Now I am going to go through my stash to get some fabric to match it with.
Tomorrow I am going down to the local patchwork shop and see what I can find for my part of the quilt.  Like Kylie I love spots and have not had the opportunity to create something in spots.. hmmmmmmm the choices are now ahead of me.
Some of the nation's richest and most important ecosystems lie where the ocean meets the land. It's these same coastal areas that are going to disappear as sea level continues to rise as a result of climate change.

But in one wildlife refuge in North Carolina, conservationists are attempting what would seem to be impossible: fighting back the sea.

The Alligator River National Wildlife Refuge encompasses 154,000 acres of marshland and a rare type of lowland forest called pocosin (right). It's just about the only place on Earth where the endangered red wolf still roams, and a lot of it is at or near sea level, which means it's in big trouble as the sea rises.

But with the unbounded optimism of youth, a dozen or so college students arrived on one spring day to see what they could do.

Jamie Rowen from the University of North Carolina at Greensboro is raking oyster shells into mesh bags. They will be used to build a reef off a nearby coastline. This music major — studying classical guitar — likes the change of pace.

The bags (left) filling and then stacking on wooden pallets are enough to build just a few hundred feet of reef to slow erosion along a coastline that stretches hundreds of miles. So you might ask whether these students are tilting at windmills.

The sea has been encroaching here for decades. Just ask Winston "Winkie" Silver — his family home on the nearby Outer Banks has been moved six times. Silver knows that the pond pines, which are characteristic of the pocosin coastal forest (right), are also losing ground to the ocean.

"The stumps [are] out there in the shallow water," he says, and "if you bring your boat in there and tear your boat up, you know that once was tree-lined and land."

A Forest Experiment

Silver wears a homemade visor to keep the sun off his ears. He's been hired to use his barges to build the reef out of these bags of shells. And though the work is taking place on a federal wildlife refuge, the effort is actually being led by Brian Boutin, a scientist from the Nature Conservancy.

Boutin starts out in his pickup truck toward Point Peter, where the reef is being built. On the way, he explains the reef is just one part of a larger plan to preserve the refuge. We pull over along the side of the gravel road to see another element of the plan.

The eager, young biologist slips on his rubber boots and heads off into a wide expanse of marsh, typical of the refuge. Water comes up the sides of our shoes — you can't get any closer to sea level than this. About 100 yards off the road, he points proudly to a bare twig coming out of the sodden soil. It's a freshly planted cypress tree.

"Once these leaf-out this spring here, we'll have a nice lime-green veneer across the top of all this marsh grass out here, so it will be pretty evident how many cypress are in this area," Boutin says.

The experiment is designed to see whether the 20,000 cedar trees they've planted can help create forest, which is home to the red wolf (left), black bear, bobcats and other animals whose habitat is gradually disappearing. Of course, if the sea keeps rising, the trees could simply find themselves drowned in saltwater; Boutin has been thinking about that a lot.

Adapting The Landscape To Change

Soon after we return to the road, we come across a refuge construction crew, installing a new culvert. Surprisingly, the goal of this project is to bring more water into the marsh where the trees are growing. Boutin explains that the hope is this fresh water will build up organic soil here by encouraging the plants that produce it.

"Part of the soil condition those species need is to have a damp soil," he says. So even though it may seem counterintuitive to bring in water to stave off sea-level rise, wetland species need to be wet. The soils here used to be fed by sediments flowing down the nearby rivers. But that sediment is no longer making its way to the marsh, thanks to dams and channels. That means the plants here are the main source of soil, and they don't build it up very fast — just a few millimeters a year.

Unfortunately, sea level is rising at the rate of 3 or 4 millimeters a year here, and that rate is forecast to grow. (Left: coast already losing battle with sea level change from climate change).

"We are not quite keeping up with sea level rise, and I think that's going to be the case pretty much everywhere we work with in Pamlico Sound," Boutin says. "But the idea is to reduce the rate of loss." (Right: Flooding at 1 foot sea level rise)

Losing the battle — but losing it slowly — makes perfect sense to Mike Bryant, who runs this refuge for the U.S. Fish and Wildlife Service.

"We expect change from sea level rise as a consequence of the warming and the melting of ice," Bryant says. "And as that sea level rises, we expect to lose land." The future of this reserve doesn't look bright: "I don't know if it's doomed, but I certainly think it's shrinking."

Eventually, the maps of this area show this refuge will be almost entirely submerged once sea level rises four feet. That could be within a lifetime, according to some forecasts.

But Bryant says change is inevitable on planet Earth. And he can at least help the ecosystems adapt with some grace.

"I don't think we can we can put a dike around a 150,000-acre refuge and
pump it out," he says. "So I think we just have to adapt that landscape to the change." (Right: flooding at 2 feet sea level rise)

That means fighting back the tide in the short run, but it also means thinking ahead.

"We'd like to think about where is the next best place for wildlife on higher ground," Bryant says. "How do we have wildlife corridors between Alligator River Refuge and those lands? And how do we secure some of those lands that are on higher ground, for wildlife in the future?"

Focusing On The Vulnerable Areas

While Bryant starts the delicate task of buying or getting wildlife easements on neighboring land, Boutin is trying to buy time. (Right: Area of wildlife refuge under water at 4 foot rise in sea level)

When we arrive at Point Peter, a gale is blowing up in the fetch between us and the Outer Banks off to the east.

"So what you see is we're standing in front of an unprotected area," Boutin says. "And you can see how much wave action is coming in and pounding the shore, and what the size of the waves are here."

These churning whitecaps are eating away parts of Point Peter at the rate of 30 feet a year, he says. But then he points to some white pipes sticking out of the water to our left. That's where Winkie Silver has been stacking bags of oyster shells in the water. Boutin says the marsh behind that reef is eroding at a much slower rate.

But he knows he can't protect very much of this coast with labor-intensive reefs.

"We are focusing on finding those areas that are most vulnerable right now and that are most in need of having their shoreline erosion addressed," he says.

It's not a permanent solution, but in the process, they're learning what works — and what doesn't work — in their struggle to fight back the sea.

NPR,"A Struggle To Fight Back The Sea", accessed April 25, 2011
Tiddles wears the dunce's hat again after
forgetting how to spell "syntactically
" unusual juxtapositions" ...
At yesterday's plenary session of the Fordham Intellectual Property Conference, covering issues arising from European intellectual property law, this member of the IPKat team wailed long and loud about what he termed the "over-intellectualisation" of European trade mark law. The Kat has received numerous responses from those attending, ranging from warm support on the one side to a sniffy comment that no-one with academic credentials has any right to complain about something having intellectual content. In the later trade mark-related sessions which he attended in the afternoon, several speakers picked up the same theme: trade mark law in Europe had become almost unmanageably complex.

If readers want an example of the sort of thing the Kat finds unacceptable, here's a current one. He has just heard from the UK Intellectual Property Office that two new conjoined cases have been referred by the German Bundespatentgericht to the Court of Justice of the European Union (ECJ) for a preliminary ruling: Cases C-90/11 and C-91/11 Strigl and others. The question for the court is this:
"Is the ground for refusal under Article 3(1)(b) and/or (c) of the [trade mark harmonisation] directive [2008/95] also applicable to a word sign which consists of a descriptive word combination and a non-descriptive letter sequence, if the trade perceives the letter sequence as an abbreviation of the descriptive words because it reproduces their initial letters, and the trade mark as a whole can thus be construed as a combination of mutually explanatory descriptive indications or abbreviations?".
In case you are wondering, Articles 3(1)(b) and 3(1)(c) are not exactly rocket science. They provide that signs can't be registered as trade marks if they are devoid of distinctive character or consist exclusively of signs or indications "which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, or the time of production of the goods or of rendering of the service, or other characteristics of the goods or services". In other words, you can't have a trade mark for something that's not distinctive or if it is descriptive. In an ideal world, a court would be able to apply these provisions to the facts before it with the need to refer them to distant tribunal and add another two years to the length of the proceedings.

One can imagine situations in which the referred question will be answered "yes" and those in which it will be answered "no"; situations in which the "trade" is also a relevant consumer of goods and services for which registration is sought and those in which it isn't; situations in which the combination of the descriptive word combination and the non-descriptive letter sequence constitutes a syntactically unusual juxtaposition and is therefore registrable (as in Case C‑474/01 P Procter & Gamble v OHIM [2004] ECR I-5173, BABY-DRY) and those in which it is not. The court may also be asked to consider those cases in which the descriptive word combination precedes the non-descriptive letter sequence and vice versa, as well as those in which the descriptive word combination includes a numeral or a place name, and so on.

Any ruling from the court on the question referred in this case is not therefore the end of the question-and-answer process but a launchpad from which subsequent refining questions are fired at the court in the hope of rendering into a verbal format every conceivable combination of facts. This may be intellectually satisfying, but it is not easy for potential trade mark applicants to understand -- or for even well-trained and highly qualified trade mark practitioners to explain.

This particular reference addresses absolute bars to registrability, but the same phenomenon can be found, to a greater or lesser extent, across the whole range of trade mark law -- infringement, cancellation, revocation, comparison of marks, taking of unfair advantage without due cause, referential use, comparative advertising. According to one speaker yesterday (the Kat thinks it was OHIM's Paul Maier but is willing to be corrected) the ECJ has heard some 150 trade mark cases -- a remarkable number which represents around ten cases a year.

For the record, the UK Intellectual Property Office welcomes your opinion on this ECJ reference (if you have one). Just email policy@ipo.gsi.gov.uk before 6 May 2011.

How to be an intellectual here and here

It is always reassuring to know that the ravages of late middle age don't necessarily spell catastrophe. As an IP person, this is especially so when it comes to the ability of media companies to monetize their contents. Thus an article that appeared in The Economist in its April 9th issue caught my attention. Entitled "Peggy Sue got old: Viewers, listeners and readers are ageing fast. Oddly, media companies don't regard that as a catastrophe," I was reassured and read on.

The challenge for media companies is that the average age of consumers of traditional media -- newspapers, radio and television -- is rising even more quickly than the average of of the general population. In the U.S., the average age of viewers for all television networks except for Fox is over 50; in the UK over 40% of readers of the Daily Telegraph and Daily Express are over 65. Instead of waving the white flag in the face of looming octogenerianism of consumers of media, though, media companies have allegedly discovered the potential market of this population.

For example, the CD "Dreamboats and Petticoats", a collection of 1950s vintage UK and US artists, sold enough dics to rank as a double platinum (these are real CDs, since oldsters don't download music, it is claimed). And then there is Susan Boyle, the 50-year-old Scottish singer who recently burst on to the scene and whose album "The Gift" was the top-selling album of last year.

More generally, media companies have reoriented their view of the desired target audience from the traditional 18-49-year old cohort to include the over-50 crowd. For one thing, seniors are less fixed on brands than was once thought, so there is more potential return in targeting them. For another, to paraphrase the legendary U.S. bank robber Willie Sutton, seniors "are where the money is", especially given the ravages of the Great Recession on the employment of young adults.

The article also suggests that changing views of appropriate business models for the media business support increased interest in older consumers. In an advertsing-based model, eyeballs fitting a certain profile matter most. But with the increasing interest in subscription models, you need to hone in on consumers prepared to pay for content, especially of the online variety. While subscription-based distribution is not limited to older consumers (consider, e.g., the move by Hulu to sell subscriptions to viewers of all ages), it is presumed, I guess, that older consumers still remember paying for content and therefore are less likely to have become intractably wedded to free online sites. The name of the game is to get those older viewers to pay, before they too develop antipathy for subscription-fee contents.

All of these observations are interesting, but I have a lingering feeling that the recent discovery of the importance of older consumers is a bit overstated. As an anecdote, I recall the first time that I visited the Rock and Roll Hall of Fame in Cleveland (full disclosure--that is my ancestral home town). The two things that most struck me about the visit were the disproportionate number of visitors who were middle age or older, and the emphasis on rock and roll music from the 1950s and 1960s.

Perhaps the two factors go together, perhaps young adults are less likely to go to museums, perhaps the admission charge dissuaded some younger visitors. Whatever the reason, what is clear is that the Museum has been around since the 1990s and that it seems to me that it has catered to an older crowd from the beginning. What may be more true is not the fact that older consumers have suddenly been discovered but rather that media companies are doing a better job of tailoring their offerings to different age groups, from the younger to the older. As a consumer of media content, better targeting would seem to be a desirable result, whatever the age.

BONUS QUESTION: One final bonus point question: How many of you younger than 45-years of age knew the reference in the title of the article to "Peggy Sue got old" (without resort to Google)?
After a panic-filled dash back to re-re-rewrite his paper tomorrow, IPKat team member Jeremy returned to the fray, coming in at the tail end of a fascinating session on initial interest confusion in trade mark law. The lively panel discussion, chaired by Professor Marshall Leaffer, turned on some of the most difficult areas: the nature and value of evidence of initial confusion, the extent -- if any -- to which proof of damage should be required, the degree of protection to which as-yet unused trade marks should be treated, the special position of initial interest confusion on the internet through the use of another's trade mark as a keyword. The IPKat looks very much forward to reading the earlier bits of this session when they're published.

With two brains working together,
Eric decided to tackle the deeper
meanings of EU TM law
This session led naturally to the final presentations of the day, by the Kat's old friend Trevor Cook (Bird & Bird) and Marshall Leaffer, when comparing the European and US approaches to protection of trade marks against dilution. Trevor expressed concern that, led by the Court of Justice of the European Union, Europe was making the law up as it went along. He echoed earlier anxieties concerning the over-intellectualisation of the formulation of trade mark concepts, as well as strong academic criticisms of the development of trade mark law, particularly where attempts have been made to claw back some of the arguably over-wide protection accorded to trade marks in some circumstances. The overlap of regular infringement and dilution is one such area of contention. Citing decisions such as L'Oréal v Bellure, Trevor observed that concepts like "unfair advantage" and "without due cause" -- which do exist in European statute law -- receive little attention, while terms that have no legal basis such as "parasitism and "riding on the coat-tails" do.

Marshall Leaffer then took the audience through some 9th Circuit dilution decisions, leading with Visa v JSL Corp 610 F3d 1088 (2010) which affirmed that dilution was a question of fact, not law, and that, where a strong mark such as VISA is at stake, summary judgment is highly appropriate.  Perhaps surprisingly the court accepted that establishing a likelihood of confusion didn't require a plaintiff to produce expert testimony or market surveys: the characteristics of the mark might be relied on by themselves. The parallel existence of the word "visa" as a regular noun with a dictionary meaning did not undermine the word's trade mark meaning: what was significant was the way it was used. Marshall also considered Levi Strauss v Abercrombie & Fitch and the degree of similarity which was needed in order to establish confusion.
Following the two "meet the judges" sessions which concluded the morning programme, lunch was declared -- with David Kappos (US patent supremo and fellow blogger) as the guest speaker. David described patents as the premier currency of global trade; this currency must not be devalued by failure to keep it relevant. This meant cutting pendency times, reducing unnecessary duplication of office work and looking at the big picture rather than focusing on the minutiae [which, as Merpel sadly notes, is what many fine academics, practitioners, administrators and judges are paid to do].

David then reminded us of the need to take account of developing nations when considering substantive patent law. He gave Europe quite a pat on the back for its efforts in harmonising substantive patent law and confessed to a rapt audience that this really excited him. Refreshed by the gentle pitter-patter of raindrops to which many diners were treated in the Fordham atrium, but with the looming presence of Hugh Hansen making itself felt, David concluded with a message that we should all reach out, work together, rise to the challenge and generally feel good as we put the patent world to rights.

Following lunch, this Kat took himself off to the stream dealing with European trade marks and designs. First up was Annette Kur, an eminent scholar at the Max Planck Institute and a member of the team which authored the recent study on the European trade mark system for the European Commission. Annette explained the background to her study, which is now under consideration by the Commission (proposals, which may or not be based on the study, are expected this autumn or, more realistically, next spring). She also reminded us of the significance of the Community trade mark as a unitary right within the context of European borders and of the non-competitive relationship between OHIM and the national offices.Among the topics she fastened on was that of 'cluttering' of the register, something which many users of the system believe to exist but the existence of which is difficult to prove.

Annette was followed by Paul Maier (speaking for the second time today), who spoke on the problems raised by descriptive trade marks in a region which contains 23 official languages as well as many languages (Russian and Turkish among them) that are not official but are nonetheless spoken by many inhabitants of the region.  Paul reviewed the issue through the lens of the Matratzen litigation, concerning a word which was entirely descriptive of mattresses in German but was quite distinctive for mattresses in Spanish. The Court of Justice took a conservative line, affirming the distinction between the existence of a mark and its exercise: the mark should be registrable but purely descriptive uses would not infringe (Paul also mentioned the Omega 3 case). Paul felt that national offices should check descriptiveness in languages other than their own, to avoid the appearance that people are deliberately registering foreign descriptive words as trade marks.

Gordon Humphreys (OHIM Board of Appeal member) then spoke on registered Community designs. He reviewed four recent decisions: T-09/07 Metal Rappers, T-148/08 Instruments for Writing, T-153/08 Communications equipment and T-513/08 Ornamentation. These cases, the first and fourth of which are on appeal to the Court of Justice, were pretty depressing news for the audience.

The panel discussion focused first on the Max Planck study, which was by general assent well received and much appreciated. Enforcement within Europe, greater consistency as between and within offices and proof of acquired distinctiveness of non-traditional trade marks.
The next segment of the Fordham programme was devoted to IP in Europe, staring with a presentation from Paul Maier (OHIM), who gave an up-to-the-minute account of the progress of trade mark grant and administration operations in his Office, magisterially dismissing Hugh Hansen's attempts to draw him into saying there was any competition between OHIM and trade mark-granting offices at national level.  Paul also vigorously asserted the need for trade mark examiners and Board of Appeal members to act within the framework of recognised legal guidelines when determining issues such as similarity of marks and likelihood of confusion, notwithstanding the opinion of certain fictional felines that those guidelines were hopelessly overintellectualised and were impossible to explain clearly to businessmen and law students.

Also speaking in this session -- and also taking advantage of the absence of European Commission heavyweights on the panel -- was Silke von Lewinski (Max Planck Institute for IP).  Mentioning the complexity of copyright as a subject, she articulated something which many of us had wondered, which was the observation that the Commission was perhaps less well-endowed with seasoned scholars of copyright law than it may have been in earlier times, and that could be argued that a measure of deep knowledge of the working of the subject might be viewed as an obstacle to progress rather than as a means of achieving it.

There being no patent people speaking, the task of reviewing patent law developments in the European Union was split between David Rosenberg (Glaxo SmithKline) and Tom Vinje (Clifford Chance). There was a consensus that the current failure to achieve a unitary patent litigation system was frustrating but that it was better to take longer and get a technically workable solution than jump ahead to a system which didn't work to optimum effect even if had the supreme advantage of being politically acceptable.

Following an unscheduled mid-session break, the speakers and panel covering IP issues in the US took the platform. The Kat, having been on the previous panel and then being serially detained by friends and questioners on his way to and from the coffee table, was delayed getting back to his coveted front-row seat. He did however have the joy of watching a thoroughly effective mini-movie, shown by John Morton (Director, Immigration and Customs Enforcement), on the all-too-rarely-perceived link in the minds of the US public between illegal copying and the loss of jobs among those working in the legitimate copyright-driven sectors.

This session led to a discussion of Google Book, the legitimacy of the project, whether it was good or bad, whether it was even capable of being stopped and whether anyone else was capable of competing against it. The question was also asked whether legislation, not settlement-plus-litigation, was the better way of sorting out conflicting claims of stakeholders. Panellist Paul Michel observed that there was a Congressional bottleneck here, while Professor Arti K. Rai characterised the ailment as Congressional incompetence.
This is the first of a number of posts on this year's Fordham IP conference, which was opened as ever by Professor Hugh C. Hansen.

Antony Taubman (head of Global IP Issues, WTO) spoke first, asking what the trade-related aspects of TRIPS actually are. Tony reassured us all that TRIPS, post-Doha, was alive and well. Topics under the TRIPS microscope include the iPod economy and the iTunes economy, as well as the dispersion of chains of product creation, manufacture and distribution -- and even a spot of dispute resolution.

Tony was followed, almost as soon as he had started, by James Pooley (WIPO Deputy DG for patents), who affirmed that IP was just one of a number of trade issues, which meant that we have to speak to non-IP people too in order to identify and resolve modern trade issues. James explained some of the dynamics of multilateral and plurilateral discussions, and the problem of "lost voices" among players who have no opportunity to be heard. James contrasted the way negotiations on ACTA were conducted with the highly open operations of the IP Five, who now have their own website.

Stanford McCoy (Assistant US Trade Represenative for IP and Innovation) then reviewed regional, pluri-, multi- and bilateral IP talks from a national government's point of view. These options are not exclusive, he observed, and are all responses to questions raised.  Stanford praised ACTA for the very open manner in which it produced so many texts in such a short time, though this Kat can't recall hearing him make mention of the word "leaks" -- the means by which he, Merpel and their many friends discovered what was actually happening. In a beautiful metaphor, Stanford also described ACTA as a tree on which IP owners could hang their anxieties.

These speakers then gave way to the panellists, starting  with Mihaly Ficsor. Hugh Hansen asked if individuals can ever make a difference to IP policy any more. Mihaly said "yes", he had made an individual contribution, and so did Francis Gurry -- as his speech on the Future of Copyright showed (see here for the Gurry/WIPO position on copyright).

Amidst much talk of the need for flexibility, leaving doors open, the need for watchfulness and similarly grand propositions, the session came to a close.
I have a dear friend who lives over 600 km away from me who shares the same love of quilting.  She has proposed a challenge for me, oh dear!
I have to buy 2 x 30cm strips of fabric, and use this plus my own fabric to create a quilt.
After I buy the fabric I have to use the fabric from my own stash and then only buy the fabric for the backing, binding and the wadding.
I am to quilt it myself before giving it to her during the September holidays.  She is hoping to come and stay.

Okay now I am on the hunt for some fabric to start this challenge... mmmm

Will keep you posted after I find some.
Some of Britain's most cherished spring visitors are disappearing in their thousands. Ornithologists say species such as the cuckoo, nightingale (left) and turtle dove are undergoing catastrophic drops in numbers, although experts are puzzled about the exact reasons for these declines.

The warning, from the RSPB, comes as the songs of the cuckoo, nightingale and wood warbler herald the return of spring. In the case of the cuckoo (right) – "the simple bird that thinks two notes a song", according to the poet William Henry Davies – its call has become synonymous with the arrival of warm weather. It is the quintessential bird of spring.

Yet there is now a real risk that, with other migrant birds from Africa, it may no longer make its annual appearance in our woodlands, said Dr Danaë Sheehan, a senior RSPB conservation scientist. The call of the cuckoo could be silenced in the near future unless scientists can unravel the causes of the drastic decline in their population, she said.

According to Sheehan, numbers of migrant birds from Africa have declined dramatically in the UK since 1995. For turtle doves (right) the figure is 71%; nightingales, 53%; and cuckoos, 44%. "That is a very significant and very worrying decline," she added.

Today, eight out of 10 of Britain's most rapidly declining species are sub-Saharan migrants, with the turtle dove heading the list. Other species are close behind: the latest figures show that the wood warbler (left) has declined in Britain by 60 per cent since the same date, the pied flycatcher by 51 per cent, the yellow wagtail by 49 per cent, the whinchat by 43 per cent, the nightingale by 41 per cent, the spotted flycatcher by 38 per cent and the cuckoo by 37 per cent. In England alone, the cuckoo has declined by 55 per cent in 15 years.

"The real problem is that there are so many different possible causes for these losses – which makes it difficult to tease out the factors involved in their decline and to prepare plans to put things right. (right: yellow wagtail)

"These losses could be the result of changes in farmland use in Britain which are affecting the way these birds breed when they arrive here in spring. Or they could be due to the spread of human populations in Africa and the destruction of natural habitats where they make their homes in winter.

"Climate change is almost certainly involved as well. Our problem is to unravel those different causes and assess how they interact."

In a bid to explain what is happening, the RSPB and groups such as the British Trust for Ornithology (BTO) have launched a series of projects in the UK and in Africa. These include new surveys of numbers of different species arriving in Britain as well as studies, in Africa, of sites that provide winter homes for these birds. Targets will include the cuckoo, nightingale and the turtle dove as well as the wood warbler, garden warbler, whinchat (at left), and pied flycatcher as well as the swift (right) – another popular visitor. Its numbers have dropped 30% since 1995.

"The global pressure for land has now become extreme, and it is starting to have real implications for long-distance migrant birds," said Andre Farrar, the RSPB's campaigns manager. "Climate change – which affects timings of breeding cycles – is another critical factor."

However, the work will be tricky thanks to the complexity of bird migration between Africa and Britain. For a start, these visitors have their winter homes in very different areas. Some birds, like the nightingale, cuckoo and swift, winter in humid western regions – including Nigeria and Ghana – while others, like the turtle dove and yellow wagtail (left), winter in the dry Sahel area in countries such as Chad. "Both regions are affected by rising populations of humans, but in ways that will have subtly different effects on land use and on individual bird species," said Sheehan.

On top of changes of land use in their wintering grounds, scientists suspect that many migrants are finding it increasingly difficult to feed themselves when they come to breed in Britain. For example, cuckoos eat large moths and it is known that in recent years numbers of such insects have dropped significantly in the UK. (at right: pied flycatcher)

There is almost certainly a significant problem caused by climate change. Migrant birds arrive and breed and then have chicks at times which are no longer synchronized with the best periods when food, such as insects,is available. Again this is likely to have a serious impact on population numbers.

On top of these factors, turtle doves (left) and nightingales (below right) are affected by the loss of sandy scrubland on which they like to breed. Intensification of farming has seen major reductions in this sort of habitat and this has had an impact on migrant birds, added Sheehan.

There are factors involved from outside either Africa or Britain. "Adding insult to injury to the effects of this land use and climate change is the massive slaughter that takes place in spring and autumn when birds, flying from and to Africa, cross islands in the Mediterranean Sea, such as Cyprus and Malta," added Farrar. "There they are shot, in their hundreds of thousands, by hunters – who just enjoy killing them for the 'sport'. It is against EU law, but that doesn't stop it happening."

In an article on December 28, 2010 from Cyprus it was stated that:
A record 1.4 million migratory birds were illegally trapped and killed over the key autumn season to feed an illicit Cypriot taste for such delicacies, a conservationist group say.

A survey by Birdlife Cyprus carried out between September and October 2010 showed more than a million birds were indiscriminately killed with mist nets and limesticks.

“The picture emerging from autumn 2010 is one of a bird trapping disaster on a scale unseen since Birdlife’s monitoring work began almost 10 years ago,” said a Birdlife statement.

Autumn trapping levels have been on a general upward trend for four years while mist netting levels are at a nine-year high according to the group. It said the figures showed a “serious failure” on the part of both Cypriot authorities and British Sovereign Base Areas where illegal trappings are rife.

Migrant birds from Africa clearly face a barrage of problems, although the effect of these will differ from species to species. The crucial point, say ornithologists, is that some of the most welcome visitors to the United Kingdom are now disappearing.

"Some of these birds are closely woven into our culture, like the cuckoo," added Farrar. "Others – like the spotted flycatcher (left), which specializes in living
in old leafy churchyards and large gardens – are less well known but loved passionately by small groups of people who are very possessive about them and who watch out carefully for their return every year.

"And that sums up our attitude to migrant birds. We are at the northern edge of their ranges. However, they breed here and we identify them as being British, though it could just as easily be argued they are African or simply birds
of the wild skies. Nevertheless, we have a deep, complex relationships with these creatures."

This point was backed by Sheehan. "These birds arrive in our countryside just as the first good weather arrives. We associate them with spring and warmth. That is why they appear so often in folklore. They are part of our culture – which
makes the declines in their numbers so worrying. We have got to find out what is going on as soon as possible.

"Many people will hear their first cuckoo (left) of the year this weekend. It is not guaranteed they will be able to do that 10 years from now."
The Guardian,"Spring may lose song of cuckoos, nightingales and turtle doves", accessed April 25, 2011
CyprusQ.com, "Record 1.4 million migratory birds killed in Cyprus", accessed April 25, 2011