The van is in the yard

I had a catastrophic day yesterday, and some things actually happened.

There I wuz, on a cold, wet, dark, stormy night and the newly purchased caravan was stuck in the driveway with a foot of it still on the road with a posted speed limit of 80 kph which means the cars were flying past at 90.

I’ve been monitoring my blood pressure for the doctor whom I see next week, I should have taken my blood pressure there and then just to see the look on his face when he saw it.

Luckily my other fears were not realised..... towing a caravan in Sydney at peak hour on a dark, wet and stormy night; surviving the run not only along Picton Road, but also down Mount Ousley; and getting the caravan in my driveway without incident.

How did it get to this?

Well the purchase with the seller went very well.  He was a perfect gentleman but he was a little bit on the ugly side.  He has a nice family but I think they all have some sort of vision problem.  At least he had a full head of hair which was nearly as good as mine!

I made him kneel down in the wet grass to hook up the van and then let him panic when I nearly took out his nice pine tree.  I hate pine trees, but if I did like them then this one looked OK, in the dark.

Negotiating some wet and crowded suburban streets, including roundabouts, in the dark while at the same time adjusting the brake thingo, brought a sweat to Paula’s brow.  The phone rang.  It was that bloody ugly seller, didn’t he know I wuz busy? 

We forgot the tele.

Bugger the tele, it’s a block and a half back there and how in the hell am I going to do a three point turn with this great monster of a caravan (all 15.5 feet of it!) hooked up to me?

With the tele on Paula's lap, we set off again.

Hey this was a breeze.  The V8 ute was pulling the caravan with no problems at all.  What was I worried about?  I knew I had the perfect tow vehicle.  Even at 100kph on the Hume Freeway everything was stable given that it was a dark and stormy night. 

Did I mention that it was a dark and stormy night?

So my confidence grew, and sure enough when your confidence gets ahead of your abilities, things start to happen.

I swung from the centre lane into our driveway.  I had to do a figure 'S' to avoid the carport which is too low to house the caravan.  But I was close to the fence.  Oops, let’s make that bloody close.  I forgot about the tree.  There is a tree right at the driveway.  I trim it now and then to aid vision when exiting our driveway, but I didn’t realise that the caravan would be higher – and now the awning, probably the most vulnerable part of the caravan, was hung up in the tree!

So there we were.  Hazard lights on.  The caravan still with a foot protruding onto the 90kph racetrack while Paula and I were doing some serious pruning on the tree.

The tree branches were cleared.  The awning seemed OK, but it was hard to tell.  My guess was that there would be some tears in it. We stood back and went over our options as the cars whizzed by. I am good at appreciating a situation because I used to teach military appreciation in the Army.

I formulated a plan. 

I called the son in law.

Two of them turned up and sorted it out.

This is how the van looked this morning....

Hmmm. Only a few leaves on the front.  That's good.

The awning is not ripped at all.  Yippee!  Although there are some marks on it.

Paula can wash those off when she gets home from work.  

The tree and the narrow driveway.

There were a lot of cuttings on the footpath which I managed to get in the bin as it was green waste day this morning.

I'd better get the bucket and sponge ready for Paula.

Oh, and she may need the ladder too
On 5 May 2011, the First Civil Senate of the German Federal Supreme Court (Bundesgerichtshof) which is, inter alia, responsible for competition law matters decided that trading with smell-alike perfumes, that are imitations of perfume products that are bearing a protected trade mark does not qualify as unlawful (unlauter) comparative advertising in the sense of Article 6 (2) No. 6 German Unfair Competition Act (UWG) if there is no clear and obvious imitation of the original perfume but where the smell-alike perfume merely evokes an allusion of the original products (case reference: I ZR 157/09 - Creation Lamis).

By way of background: Article 6 UWG is based on Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising, in particular its Article 2 (c) and its Article 4.

The facts: the defendants were offering low priced perfumes on the Internet under the mark "Creation Lamis". These low priced perfumes had similar smells to those of expensive perfume brands. The defendants initially also used ‘comparison charts’ which compared the defendants' smell-alike perfumes with the respective high priced original perfume brand. The defendants had, however, ceased using the comparison charts in recent years.

The claimant, who is a distributor of high priced luxury perfumes brands, took objection to this in its view unfair business practice. The claimant argued that the defendants’ offering, advertising and distribution of the smell-alike perfumes amounted to unfair competition since the smell-alikes were recognisable as imitations of the claimant's high priced original perfume brands all of which where registered as trade marks. The claimant had been unsuccessful in the lower instance courts insofar as it had tried to prevent the defendants' trade with the smell-alikes without the use of comparison charts. In this regard the Bundesgerichtshof allowed the claimant's appeal and sent the case back to the court of appeal, the Kammergericht Berlin.

The Bundesgerichtshof explained that Article 6 (2) No. 6 UWG does not prohibit to imitate an original product. Furthermore, it will not amount to unfair comparative advertising in the sense of Article 6 (2) No. 6 UWG where the original product is recognisable due to the get-up and labelling of the respective imitation (here the smell-alike) even if its advertising evokes certain allusions. What is prohibited under Article 6 (2) No. 6 UWG is a clear and definite imitation statement (Imitationsbehauptung) which makes it clear by itself - and without the need to consider any additional circumstances - that the advertised product is advertised as a copy of a certain and specific original product.

The court of appeal had assessed the question as to whether there was a clear and obvious imitation statement by looking at the end user's perspective and decided that there was no imitiation in the sense of Article 6 (2) No. 6 UWG in this case. The Bundesgerichtshof confirmed that the court of appeal had determined the facts correctly with regard to the end-user perspective.

However, the Bundesgerichtshof found that the court of appeal's decision had not discussed the claimant's argument that the defendant had also targeted retailers with its smell-alike perfumes and not only end users. The claimants had argued that retailers, who had a more specialised knowledge, would have recognised the defendants' smell-alike perfumes as clear imitations of the original luxury perfumes due their 'get-up' (Ausstattung) and their allusive names. In this regard the Bundesgerichts stressed that where an advertisement was targeting different groups of consumers, it was enough to render such an advertisement "unfair" if the conditions of Article 6 (2) No. 6 UWG where met for only one group of the consumers targeted (here: the retailers). As such, the Bundesgerichtshof decided to overturn the court of appeal's decision and send the case back to the court of appeal. The Bundesgerichtshof also held the court of appeal should examine whether the defendants' advertising towards retailers amounted to an exploitation of the reputation of the claimant's trade marks.

While some German observers have already stated that the court has made it easier to trade with smell-alike perfumes due to the relatively high threshold for the application of Article 6 (2) No. 6 UWG, it should be kept in mind that the court of appeal might find that retailers would easily recognise the smell-alikes as imitations of one particular perfume. This Kat will be interested to read the Bundesgerichtshof's decision in its entirety once it becomes available, as well as the Kammergericht Berlin's actual decision in this particular case. Perfumes clearly make for interesting trade mark cases.

The court's press release can be retrieved by clicking here (in German)
Perfume for cats - here.
About one minute ago, the United Kingdom's Intellectual Property Office (IPO) finally went public on the worst-kept secret since Ryan Giggs' alleged liaison with Imogen Thomas brought down Twitter.  Yes, the IPO is finally doing the honourable thing and launching its Peer-to-Patent (P2P) experiment.  According to the recently embargoed media release,
" ...  Peer to Patent is a review website which allows experts from the scientific and technology community to view and comment on patent applications. During the six month pilot up to 200 applications in the computing field will be gradually uploaded for review on the [P2P] website. These will include a range of inventions from computer mice to complex processor operations [Not much of a range, grumbles Merpel, if they're all to do with computers. What about genetically modified mice for use in the manufacture of catfood ...?]. 
Today [At one minute past midnight? The Kat marvels at the diligence of his IPO friends. Merpel hopes they're not being paid extra for working so late, because she isn't], the first group of applications have been uploaded to the Peer to Patent website ( and are now open for review by registered users for three months. Following this, the system will create a summary of the comments which will be sent to a Patent Examiner at the Intellectual Property Office (IPO). Examiners will then consider these as part of the patent review process. 
Speaking about the launch in the UK today, Baroness Wilcox [Minister for Intellectual Property and another night-worker, it seems] said:  
Bed rock
“Patent applications granted after using the Peer to Patent website review will be potentially stronger, giving businesses better protection to grow their innovative ideas. This will give the IPO access to a wider body of knowledge when deciding whether a patent should be granted. The pilot will give experts the opportunity to comment on patent applications and share their vital expertise before patents are granted. It will also mean that inventions already known in the wider community will be filtered out more readily. Peer to Patent is a step forward in supporting growth by reinforcing the patent bedrock on which innovative businesses thrive” [The IPKat likes the bit about reinforcing the patent bedrock and proposes to purr-loin it some time.  Merpel disagrees: the bedrock can't be much use if it needs reinforcement]. ....".
The IPKat is tremendously excited by this development, which he is sure will lead to greater things.  Merpel's a bit anxious though. On clicking through to the P2P site a short while before midnight, she couldn't help thinking that it looked just a wee bit, well, American (not that there's anything wrong with that).  She was however surprised to see this British site bearing such unexpected add-ons as a policy statement regarding violations of the Digital Millennium Copyright Act and a Code of Conduct which states:
"Thank you for participating in this historic experiment to submit information to the United States Patent & Trademark Office (USPTO) that is relevant to the determination of patentability".

Meanwhile, closer to home and unashamedly parochial, the IPKat's own Peer-to-Patent seminar next Monday afternoon, 6 June, now has 47 good souls registered.  This little event will be free, fun and informative -- and there's still time to register if you don't take up too much room.  No need to bring a US passport: just email the IPKat here using the subject line PeerPat, and tell him you're coming.
My goodness I cannot believe it is Wednesday and the start of Winter, not that the weather here indicates it's the start of winter.  Today it is quite mild.

I am currently attempting to complete my Down in the Garden blocks. I am also needing to complete an assignment for uni, wonder if that is classed as a WIP?

Down in the Garden, all this is left to do on this block the centre and ring around the flower on the left hand side.

The block also needs the centres and the middle ring filled on those red flowers.  Also the dresden plate flower which will sit on the green check fabric.
I am so close to completing both these blocks.  That will leave me with one block for the qult.

My priority today is to work on my assignment.... it is a WIP that I am not too keen to begin.
I cannot believe that tomorrow is the start of winter.  With the weather today one could think that it was the start of spring. 
Miss 8 is recovering well after her mishap with the scooter, the swollen lip is healing and shrinking. 


Monday night

 Her excitement this morning was the realisation that she could smile again.

I was able to sit down tonight and do some handsewing.  While watching two of my favourite shows.
I have my last assignment to complete over the next few days before I can reward myself with anymore stitching. 
I want to stitch so I best get focused and complete this assignment.

Football's governing body?
Is there corruption at the highest levels of the sport which most of the world (i.e. almost everywhere except the USA) calls football?  You may as well ask, do dogs have fleas? This member of the IPKat team has long assumed that there is, his impressions being based only on the evidence in the media of the increasingly bizarre behaviour, statements and decisions of its leaders, culminating in the extraordinary and nearly universally criticised (i.e. almost everywhere except in Qatar) decision to host the 2022 World Cup tournament in Qatar.

This is a year of change.  Dictators have tumbled in Egypt and the Ivory Coast; Colonel Gaddafi's regime totters in Libya. Football's governing body Fifa stumbles from crisis of credibility to crisis of incredibility, yet Sepp Blatter appears as unshiftable as ever.  Surprisingly it has taken until now for the businesses that pour vast sums of money into Fifa's pockets to express any concern over the ongoing soap opera which is Fifa today.  According to today's report from the BBC,
"Sponsors associated with Fifa have expressed concern at the damage allegations of corruption are causing world football's governing body. Coca-Cola and Adidas [two of the world's biggest brands, notes Merpel, which have achieved status through an association with all that is supposedly clean, healthy and decent] have voiced worries over the controversy, despite Fifa president Sepp Blatter stating that the organisation is not in crisis.

But a Coca-Cola spokesperson said: "The current allegations being raised are distressing and bad for the sport."

Fellow sponsors Visa and Emirates are keeping a distance from the row [the position of popular airline Emirates is as sticky as a footballer playing in temperatures of 40-50 degrees, notes Merpel, since Qatar is an emirate ...].

Blatter is expected to be re-elected to his post unopposed after his only rival candidate in Mohamed Bin Hammam, president of the Asian Football Confederation (AFC), withdrew from the race to govern Fifa.

In the lead up to the 1 June vote [that's tomorrow], which there have been calls to postpone, Bin Hammam has been provisionally suspended by Fifa's ethics committee over allegations that financial incentives were offered to Caribbean Football Union members. Concacaf president Jack Warner, whose Fifa association governs the region of North, Central American and Caribbean football, has also been provisionally suspended.

The world awaits a truthful explanation. But will it come out?
And, in a progression of claim and counter-claim, Bin Hammam has appealed his ban, while Warner has revealed an e-mail sent to him from Fifa general secretary Jerome Valcke suggesting Bin Hammam had "bought" the 2022 World Cup final for Qatar.

Although Valcke has moved to clarify his remarks in the e-mail, the developments will have fuelled bribery claims over the bidding process to host the 2022 World Cup tournament, which will be held in Qatar. ...

"We have every expectation that Fifa will resolve this situation in an expedient and thorough manner," added the Coca-Cola spokesperson [Drafted by the Department of Wishful Thinking?]. An Adidas spokesman said: "Adidas enjoys a long-term, close and successful partnership with Fifa that we are looking forward to continuing. Adidas will be an official sponsor of Fifa World Cup 2014 in Brazil [an event which seems to have been eclipsed by recent news, and which does not, to this Kat's recollection, seem to have attracted any accusations]. Having said that, the negative tenor of the public debate around Fifa at the moment is neither good for football nor for Fifa and its partners"."
The IPKat personally doubts whether the scandal at the top end of Fifa will tarnish the reputation of any of the sponsors. This is because World Cup is an extremely popular event which generates so much goodwill that probably even Fifa can't destroy it. He also doubts that it would be worthwhile for the sponsors to withdraw -- even if their contracts so provided -- for the same reason: the saturation coverage to which they are entitled can't be conveniently obtained elsewhere at any price and there would be no shortage of substitute sponsors. He is however pleased to see the sponsors express some concern at the conduct of the miserable, humourless and heavy-handed bunch which has ruled the Beautiful Game for far too long.

Earlier BBC documentary on Fifa corruption here
Fifa versus Kulula Airlines here
The Bundesgerichtshof brushes off Fifa's attempts to monopolise descriptive terms as World Cup trade marks here
OHIM brushes off Fifa's attempts to monopolise descriptive terms as World Cup trade marks here 
Australia's huge cattle herd in the north might be burping less planet-warming methane emissions than thought, a study released on Friday shows, suggesting the cows are more climate friendly.

Cattle, sheep and other ruminant livestock produce large amounts of methane, which is about 20 times more powerful at trapping heat than carbon dioxide. One cow can produce about 1.5 tons of greenhouse gas emissions a year.

Half of New Zealand's greenhouse gas emissions come from agriculture and most of that is from sheep and cattle. Most of the cattle and sheep emissions are, contrary to popular belief, from burping.

Speaking at Lansdown Field Day near Townsville, Queensland, CSIRO research leader Dr Ed Charmley said the findings would help to refine the nation’s greenhouse gas accounting.
“Measurements from cattle in CSIRO’s custom-built respiration chambers show that Brahman cattle fed a wide range of tropical grasses emit up to 30 per cent less methane than previously determined.

“While you always have to be cautious in extending lab data to the field and across an industry, we have been able to cross-check our findings with methane detecting laser systems used in the field.

“These findings, while not changing the actual emissions, could have significant implications for calculating the emission footprint of the northern cattle industry and also for Australia’s greenhouse gas accounts.

“Methods used to determine these national greenhouse gas accounts are regularly reviewed and if the new data are confirmed via this review process, future accounts will be adjusted to reflect the lower emissions for the northern beef herd,” Dr Charmley said.
"The industry is more methane friendly than was previously thought
based on the new measurements," research leader Ed Charmley (left) told Reuters by telephone during a field day near Townsville in northern Queensland state.

About half of Australia's approximately 27 million head of cattle are in the north, with the northern cattle herd accounting for about 4.5 percent of the nation's total greenhouse gas emissions.

As a by-product of digesting plants, ruminant livestock such as sheep and cattle produce methane and, of those, beef cattle produce the most – about 200 grams a day, or about 1.5 tons of CO2 equivalents per animal every year.

CSIRO research also shows that northern cattle fed on a diet of
predominantly Leucaena, a legume tree, (right) emit less methane than cattle grazing on tropical grasses,” Dr Charmley said.

“What this nutrition research is showing is that there can be win-win scenarios for the industry and the environment if we can redirect the breakdown of plant material in a way that reduces the amount of methane produced while improving the amount of energy or weight gain that animals get from their feed.

A 30 percent reduction in emissions would total about 7.4 million tons, or roughly the amount of a large coal-fired power station.

The study could help the government refine the way it calculates the nation's annual greenhouse gas accounts, with agriculture responsible for
15 percent of the nation's total greenhouse gas emissions.

Scientists say changing the diets of sheep and cattle can reduce emissions from agriculture. And such steps could also earn carbon credits in a new emissions trading program being debated in the Australian parliament.

Reuters,"Australia's burping cows more climate friendly than thought", accessed May 29, 2011
World News Australia, "Burping cows are climate friendly: study", accessed May 29, 2011, "Research sheds new light on methane emissions from the northern beef herd", accessed May 29, 2011

Sad news out of Afghanistan

AN Australian soldier has been murdered and a second died in a chopper crash on one of the most tragic days of the long campaign in Afghanistan.

The first death occurred at a forward operating base in the Baluchi-Chora Valley when a rouge Afghan national army solider shot dead an Australian lance corporal as they performed guard duty together.

The second, an army helicopter pilot, was badly wounded and lately died from his injuries after an Australian army CH-47 Chinook helicopter crashed in Zabul Province.

Five other Australians onboard the chopper suffered minor injuries and were treated and released from hospital.

Details here:
The sad fate of British reviews of intellectual property
The dust has not yet settled on Digital Opportunity: a review of intellectual property and growth (the main recommendations of which are noted here), the fabled Hargreaves Review of how to make money from your own intellectual property and other people's, so it's high time for a brief round-up of responses to it (an earlier review of very swift responses to Hargreaves was posted on the 1709 Blog here).

Duncan Calow (partner and digital media specialist, DLA Piper) expressed relief the fact that there wasn't anything hugely radical in it:
“Suggestions that Professor Hargreaves would propose sweeping new changes in copyright law have proved to be nonsense. Instead he has chosen to revisit some of the more sensible proposals from previous work. As a journalist and academic, Professor Hargreaves knows that in a digital world of clouds, networks and user-generated content we are all both users and owners of digital rights [This Kat, who has had some experience of both academe and journalism, wonders whether -- though there be exceptions -- both groups benefit more from free and easy access to others' works than from the protection of their own]. So despite the talk of copyright wars, fair and effective rules require thoughtful and proportionate change, not hyperbole".
His partner Simon Levine however added a word of caution, based on the fact that the internet is global, copyright is fraught with international obligations, but anything the UK even thinks of doing is going to be somewhat parochial unless everyone else does it too:
“...  if businesses are ever going to be able to fully exploit the opportunities that the internet offers as a global channel to market, it is essential that we focus on how international IP laws can be harmonised accordingly. This is acknowledged in the report ... The Hargreaves report contains some very sensible and well-considered proposals. However, it remains to be seen how these will be translated at an international level – and it is this that will dictate its true impact” [It's not just a question of international law, says the Kat, it's a question of diplomacy: for as long as it's profitable for rogue states to remain rogue states, the problems will be shifted around but not eliminated].
More caution comes from the Federation Against Software Theft (FAST), which was not slow to express concern over the uncertainty of what exactly will be taken forward and how quickly.
"Key findings of the Report include the suggestion of a ‘Digital Copyright Exchange’, where the intention is to promote growth by having an efficient, open and effective digital market where rights can be can be speedily licensed and effectively protected. The intention is noble. However, it is yet to be seen how this could work in practice or whether it is intended or even desirable for the software industry to participate [The software industry in Europe has a modified statutory version of the digital copyright exchange, says Merpel -- it's called the interoperability and reverse engineering provisions of the Software Directive. The software industry wasn't given much of a choice as to whether to participate, but doesn't seem to have died from it]. : 
A more telling cautionary note from FAST comes from its contrasting the recommendations of Hargreaves with those of its predecessor, the Gowers Review:
“In 2006, Gowers recommended that the enforcement regime should be ‘effective and dissuasive’ and arguably it is not when simply a licence fee can be paid if an infringer is caught on the hop; the Gowers sentiment should not be forgotten. [It hasn't been forgotten, says Merpel. It has been ignored]
The metaphor of "destinations without routes" is that chosen by Andrew Sharples (partner and head of EIP Life) to epitomise Hargreaves in his review here. The Review acknowledges that it is “focused upon the main issues, at the risk of ignoring important points of detail” -- but the main issues have to be seen as targets that can somehow be achieved: the detail helps us understand how to get there as well as letting us know which recommendations are too ambitious to be achieved at all. He too focuses on the Digital Copyright Exchange (DCE), which would be
" ... a common, standardised platform for licensing works. ... However, the Review also acknowledges that to encourage uptake there will need to be disadvantages to not being part of the exchange; suggestions include greater damages for infringement of works included in the exchange; applying sanctions under the Digital Economy Act only in relation to works included in the exchange; giving creators the right to withdraw from publishing agreements where the publishers do not place works on the exchange; and perhaps most controversially, treating works not placed on the exchange as “orphan works” ... [Expect an avalanche of holiday snaps and wedding photos if this idea ever gets accepted, warns Merpel] The Review does not advocate that the government creates the DCE (so as to avoid “a nightmare of IT procurement followed by the birth of a white elephant”) but instead brings together interested parties to find ways of overcoming divergent interests. How these divergent interests are to be overcome is not clear though, and almost as soon as the Review was published criticisms were made of the viability of this proposal. Certainly the goal of establishing the DCE by the end of 2012 seems optimistic".
Orphan works also come in for his attention. Can the UK do its own thing regarding such works, given that works 'freed up' for use under emancipating legislation may still be regarded as infringing copyright everywhere else in the world:
"The problem of orphan works, i.e. works for which the rights holder cannot be identified, is addressed, the suggestion being that after a diligent search to locate the owner, orphan works should be deemed to be licensable for a nominal fee. This would free up the use of large bodies of works in the national archives. However, it is suggested that a diligent search would simply require checking if a right is contained in the DCE, and, if not, treating it as an orphan work. This could effectively introduce a requirement for copyright registration, and it is questionable whether this would be consistent with the UK’s obligations under the Berne Convention to provide copyright without a registration requirement [Article 5(2) of the Berne Convention states that "The enjoyment and the exercise of these rights shall not be subject to any formality". Merpel says, I'm no lawyer and I'm pretty informal -- but this looks like a formality to me ...]".
A more encouraging view of the DCE comes from Maxine Horn (CEO of Creative Barcode -- a company that neither creates new designs nor uses other people's, but provides digital watermarking by which use of designs can be monitored and licensing thus rendered more effective). After analysing the proposal she concludes:
"A Digital Copyright Exchange implemented in a robust whilst non-complex manner would serve the creative industries and innovation focused businesses very well. Those who feel that an open-source or ‘freeconomy’ based on free access to use, replicate, re-mix or build on others knowledge and work is the only route to innovation growth are perhaps not considering the rights of the creative industries to earn a living from their original works. IP, particularly pre-commercialised, does not need to be restrictive to be effective [This is the problem, says the Kat: we all know what 'restrictive' means, but 'effective' carries no single shared meaning -- and we're talking about the conflicting interests here]. A fair model that recognises respects and remunerates the professional idea generators, creators and solution-led creative consultancies should surely open up innovation not restrict it".
Creative Barcode gets a nod in the Forbes Blog's comment on Hargreaves, "Copyright and Related Laws Hold Back Innovation and Growth, Say British", which views the UK from a distant US perspective and says:
"This is not exactly a call for a new type of creative commons, though CC licensing has clearly aided the growth of services like Flickr and platforms like WordPress. What the British want to see is a Digital Copyright Exchange, a market where digital rights can be processed rapidly and cheaply [Says Merpel, processing digital rights sounds a bit like an exercise in commodifying IP. Have humans and their feelings been eliminated somewhere along the line?]".
The IPKat remains committed to keeping an eye on Hargreaves. If anything exciting comes of it, he will do his best to let you know.
The IPKat would like to take the opportunity to wish a Happy 40th Birthday to the Benelux Office for Intellectual Property (BOIP). Originally born as the Benelux Trade Marks Office on 1 January 1971, the BOIP is now a key player in the international intellectual property landscape, and more specifically, in the international registration systems for trade marks and designs administered by WIPO.

To commemorate the occasion, the BOIP published In Varietate Concordia?: National and European Trademarks living apart together. The work is collection of essays by well known authors on new problems in trade mark law:
  • Charles Gielen, ‘Has Benelux law influenced European trade mark law?’ (in Dutch);
  • Mireille Buydens, ‘Can you have a distinctive mark and a risk of confusion?’ (in French);
  • Sylvie Mandel, ‘Use of marks on the internet’ (in French);
  • Jeremy Phillips, ‘Interpreting Territorial Use of a Community Trade Mark in Light of the Joint Statements’ (in English);
  • Mihaly Ficsor, ‘The Territorial Dimension of the Genuine Use Requirement for Community Trade Marks’ (in English);
  • Katia Manhaeve, ‘Territorial Usage of Community trade marks: from a user’s perspective’ (in French);
  • Daniel Bereskin, ‘The Territorial Effect of Trade Mark Registration: a North American Perspective’ (in English);
  • Tobias Cohen Jehoram and Henriette van Helden, ‘Famous, more famous, the most famous: protection of goodwill in trade marks’ (in Dutch);
  • Marten Bouma, ‘Strategic choices concerning the protection of marks’ (in Dutch);
  • Patrick Marichal, ‘All roads lead to Rome are via The Hague, Geneva or Alicante’ (in French);
  • Richard Ashmead, ‘An Approximation of Harmonisation and Differences in EU Law & Practice on Class Headings’ (in English);
  • Roland Knaak and Philipp Venohr, ‘Coexistence in Future European Trade Mark Law’ (in English).
The book is well worth reading (even with Babelfish translations if you are not fluent in all three languages) for the sustained treatment of trade mark issues arising at the national, community and international levels. It also has the honour of being the first book this Kat owns which comes with its own commemorative book box.

The IPKat notes some useful BOIP trivia: the Office itself claims the fastest trade mark processing times in the world and was ranked first in terms of overall performance in an international survey published by Managing Intellectual Property in May 2010. Merpel suggests that this trivia should give the UK’s IPO something to aspire to …
Bibliographical details: hardback, pp 184, ISBN 978-90-811477-3-6. Available only if you are a friend of the BOIP, or a friend of a friend, it seems, since no purchase details are provided. Rupture factor: minimal. Bookcase show-off factor: high.
The bluefin tuna, the largest of all tuna species, missed being placed on the endangered species list, but the majestic fish prized by sushi lovers will be listed as a "species of concern" by the federal agency that oversees America's fisheries.

After extensive scientific review, the National Oceanic and Atmospheric Administration announced Friday it has determined that bluefin tuna does not warrant protection under the Endangered Species Act. The agency conducted the review after the Center for Biological Diversity submitted a petition seeking an endangered status for the fish, claiming the species faces possible extinction because of overfishing and habitat degradation, including effects of the BP oil spill on bluefin spawning grounds in the Gulf of Mexico.

Even though bluefin will not be listed as endangered or threatened, NOAA officials said they still have concerns about the fish, which can swim at speeds faster than 50 mph and grow to more than half a ton in size.

The U.S. government did put the Atlantic bluefin tuna on an environmental watchlist as a "species of concern" on Friday, and will keep checking for any impact on these fish from the 2010 BP oil spill in the Gulf of Mexico.

At this time, the species is not threatened or endangered and so will not be listed as such under the Endangered Species Act, which would trigger immediate protections, officials at the National Oceanic and Atmospheric Administration said in a telephone briefing.

Atlantic bluefin tuna spawn in the Gulf of Mexico in the vicinity of last year's BP Deepwater Horizon spill, but so far there is no evidence that the species is being harmed. However, satellite data from the European Space Agency shows 20% of juvenile bluefin tuna killed by oil from the spawning year 2010 (right - click on image for larger image).

"While the NOAA team found that presently available information did not support listing, it also recognized the need to continue to monitor the potential long-term effects of the spill on bluefin tuna and the overall Gulf ecosystem," Eric Schwaab, of NOAA's Fisheries Service, told reporters.

The time period of the agency's peer-reviewed study did not allow for full consideration of the impact from the oil spill, Schwaab said.

NOAA will revisit this decision by early 2013, when more information about the spill's impacts will be available. There will also be an updated assessment of Atlantic bluefin tuna stocks by the International Commission for the Conservation of Atlantic Tunas (ICCAT), the global agency that monitors the fish's management and conservation.

Susan Lieberman of the Pew Environment Group applauded NOAA's decision to closely monitor the species, but said the agency should close the Gulf of Mexico to long-line fishing for other species to protect Atlantic bluefin tuna's spawning grounds.

"They've got it on a watchlist, they agree it's in trouble and they need to take action," Lieberman said by telephone.

Long-line fishing operations continue to ply the Gulf for yellowfin tuna (right) and swordfish, but now use so-called weak hooks to protect bluefin tuna that spawn in the area, Schwaab said.

Outside of the Gulf of Mexico, bluefin tunas are not much better off. The Atlantic bluefin tuna is a large
migratory fish found in the western and eastern Atlantic and the Mediterranean Sea (left). This species is at serious risk of extinction if unsustainable fishing practices in the Mediterranean are not stopped.

Bluefin tuna populations worldwide have come under scrutiny for decades, with conservationists saying stocks are over-fished and in jeopardy. Because the fish swim such long distances, they are managed by the International Commission for the Conservation of
Atlantic Tunas, a multi-governmental organization based in Spain. The species is managed as two stocks — the western Atlantic and the eastern Atlantic, which includes the Mediterranean Sea.

Tuna populations have fallen 80 percent in the past 40 years, said Katherine Kilduff, staff attorney for the Center for Biological Diversity's oceans program.

Although NOAA fell short of listing tuna as endangered, the agency's concerns about the fish might serve as a wake-up call for ICCAT and others to institute new safeguards for the fish, she said. The fish is under threat from a lack of enforcement of existing laws, especially in the Mediterranean, from the BP oil spill and from long-line fishermen inadvertently catching and killing them, she said.

The U.S. accounts for about 5 percent of the global bluefin harvest, with more than half the catch being exported. Most of the catch goes to Japan. Atlantic bluefin tuna can fetch more than $100,000 each in markets such as Japan, though stocks have declined by more than 80 percent since the 1970s due to overfishing.

Last November, ICCAT set fishing quotas for this year at 12,900 tons, a reduction of 600 tons from the previous year, but a reduction that
environmental groups said was too small to ensure recovery of the species in the Mediterranean.

Last week, Europe's fisheries chief called for close monitoring of the trade in bluefin tuna caught in Libyan waters, fearing illegal catches could push the species closer to regional extinction. WWF and Greenpeace have called for a suspension of the fishing season which opened May 14th.

Dwindling Numbers of Bluefin Tuna

Reuters,"Atlantic bluefin tuna on U.S. environmental watchlist", accessed May 28, 2011
CBS News, "Bluefin tuna kept off endangered species list", accessed May 28, 2011
WWF, "Bluefin tuna in crisis", accessed May 28, 2011
NOAA, "Fishwatch - Atlantic Bluefin Tuna", accessed May 28, 2011
Four old retired blokes are walking down the street.   

They turned a corner and see a sign that says, 'Old Timers Bar - all drinks 10 cents. 

They look at each other, and then go in, thinking this is too good to be true.
The old bartender says in a voice that carries across the room.  'Come on in and let me pour one for you! What'll it be, Gentlemen? 
There seemed to be a fully-stocked bar, so each of the men ask for a  martini.. In short order, the bartender serves up four iced martinis.....shaken, not stirred, and says, 'That'll be 10 cents each  please.'
The four men stare at the bartender for a moment.   Then look at each other...they can't believe their good luck.
They pay the 40 cents, finish their martinis, and order another round.
Again, four excellent martinis are produced with the bartender again saying, 'That's 40 cents, please..' 
They pay the 40 cents, but their curiosity is more than they can stand.  They have each had two martinis and so far they've spent less than a dollar.
 Finally one of the men says, 'How can you afford to serve martinis as good as these for 10 cents each?'
 'I'm a retired tailor from Sydney,' the bartender said, 'and I always wanted to own a bar.  Last year I hit the Lottery for $25 million and decided to open this place. Every drink costs ten cents - wine, liquor, beer, it's all the same.'
 Wow!!!! That's quite a story,' says one of the men.
The four of them sipped at their martinis and couldn't help but notice seven other people at the end of the bar who didn't have drinks in front of them, and hadn't ordered anything the whole time they were there.
One man gestures at the seven at the end of the bar without drinks  and asks the bartender, 'What's with them?'
The bartender says, 'Oh, they're all old retired farts from the caravan park, they're waiting for happy hour when drinks are half price!'

Lotus judge: why sue, if you can race each other for the name?

At last we know who has control over the talismanic name Lotus, much loved in motor racing circles and once symbolic of a fruit eaten by lovers of luxury and self-indulgence.  Our information comes courtesy of a ruling this Friday in Group Lotus Plc and another v 1Malaysia Racing Team SDN BHD and others [2011] EWHC 1366 (Ch),  a gigantic decision of Mr Justice Peter Smith in the Chancery Division, England and Wales (388 paragraphs, plus appendices) to the effect that Team Lotus Ventures is allowed to call itself Team Lotus.

In short, British inventor and car designer Colin Chapman was the founder of Lotus Cars, which first competed in motor racing events in 1948.  He died of a heart attack in 1982 and, following which event there has sadly been a fair bit of contention as to who is qualified to use the term 'Lotus'.  This has crystallised into the litigation noted in this post, and alluded to in an earlier post here. Some flavour of the dispute and what it means to the parties can be gleaned from today's report in the Irish Independent:
"In Monaco this weekend, in one particular pit garage, they were celebrating an important victory. [Entrepreneur and AirAsia founder] Tony Fernandes was jubilant at the hot-off-the-press news that a high court judge had just ruled that his team has a right to use the name 'Team Lotus'. Down the way at Renault, by contrast, the team's shareholder and title sponsor 'Group Lotus' -- which is owned by Proton -- were in shock. Proton had originally granted a license to Fernandes for the use of the name 'Lotus Racing' for five years. But one year into the contract they withdrew it. So Fernandes, who has invested over £80m in his team since its inception in 2009, purchased the dormant name 'Team Lotus' from David Hunt (brother of former world champion James Hunt), who had picked it up from the administrators when the iconic team went bankrupt in 1994.
The original Lotus MK1 was
a souped-up Austin 7
...  'Team Lotus', as the name suggests, is and was an F1 racing entity, whereas 'Group Lotus' manufactures cars. 'Team Lotus' switched from Cosworth to Renault engines this season. Group Lotus and a company called Genii Capital own the former 'Renault F1' team. It gets even more complicated than that. ...  The Chapman family sold the Lotus company some 20 years ago and since then it has been owned by General Motors, Bugatti and now Proton. But having initially backed Fernandes' 'Team Lotus' in a fanfare of publicity, the Chapmans have switched their allegiance to Lotus-Renault.

Proton is Malaysian, as is the English-educated Fernandes. The car giant was part of a consortium that backed Fernandes when he first entered F1".
The Kat glazes over with all these details to understan
But what of the ruling itself? According to a note posted on the website of 20 Essex Court, whose barristers appeared for defendants Team Lotus, Peter Smith J has now held that Team Lotus Ventures (TLV) owns the goodwill associated with the Team Lotus name and roundel, and that Group Lotus's claim to the name should be dismissed. It's not all good news for TLV though, since the judge ordered that it be revoked for non-use during the period in which TLV was not involved in Formula 1 racing.  By way of consolation, TLV -- and not Group Lotus -- was entitled to the registration of new trade marks registered for the team's name and roundel.  In further holdings, the judge concluded that TLV's use of its name did not infringe Group Lotus's trade marks in the name Lotus and that 1Malaysia was not to be restrained, by reason of a licence agreement between it and Group Lotus in 2009, from using the name Team Lotus. However, 1Malaysia had been in breach of the licence agreement in failing to obtain approval for the manufacture and sale of 'Lotus Racing' merchandise in 2010, this licence having been validly terminated by Group Lotus in September 2010. Did you follow all of that? No? Well, it took this Kat a few readings before he got the hang of it, but he wouldn't want to have to explain it to anyone after he'd been at the catnip.

The judge made an interesting observation on this case, which occupied seven hearing days and plainly wasn't as much fun as the Da Vinci Code litigation in which this occasional IP judge presided:
"387. It is unfortunate in my view that this case came before the courts and was incapable of resolution beforehand. However if the parties cannot agree to resolve a dispute that is why the courts are here. At the end of the day I cannot help feeling that nevertheless the parties are better competing against each other on the F1 racetrack. Equally I cannot help avoiding the feeling that F1 followers would actually find that enhances F1 and they would be interested to see which of the two Lotus cars was more successful and which then might possibly be better placed to claim to be successors to the Colin Chapman mantle".
The IPKat is enchanted with the notion of competing parties resolving their disputes in this fashion.  If litigants fighting over a racing brand can settle their grievances over 24 laps at full throttle, there must be scope for other novel means of satisfying bruised honour.
Read about Tornado Damage in the Great Smoky Mountain National Park

Click here to see Smoky mountain video of tornado damage with trail closings
As I look around at the other blogs related to my love of Patchwork I am in awe with how varied they are in appearance.

My interests and love of Patchwork also include my knowledge and understanding of Information Technology.  As I tell the ladies I work with,  'it won't beat me I will find out how to do it'.  So after an hour of changes I think I am happy with the look of my blog.

I have not had much time sewing this weekend. 
My youngest girl who is 8 had a minor accident today between the scooter and the road.  I think the road and scooter faired better than Miss 8, who has quite a fat lip, scraping on the nose and a cut unter her top lip.  She is not wanting to go to school tomorrow but I am sure she will be fine. 

I have one assignment left to complete for my degree then I hope to starting going through those WIPs. 

When unpacking more boxes today in search of fabric for my challenge I discovered 2 more quilts that need to be quilted.  The list just gets bigger and bigger.  Not that I am complaining...
Earthjustice - Because the earth needs a good lawyer.
Help prevent the use of a cancer-causing pesticide on our nation's crop lands.
Picture of strawberry field. Photo by Jerry Burke.
Photo by Jerry Burke
Support our efforts to ban the use of methyl iodide with a special gift today.
Donate Today!

Dear Supporter,

It's a classic case of profits over people.

The world's largest private agro–chemical corporation—Arysta LifeScience—has been lobbying for expanded use of its highly profitable, cancer-causing pesticide methyl iodide on our nation's crop lands.

Florida and California—which grow much of our nation's produce—have already caved to industry pressure and are allowing this known carcinogen to be applied to their farm lands.

Help Earthjustice’s legal experts win a ban on this extremely toxic chemical. Make a special gift today.

Methyl iodide is so carcinogenic that it is used in labs specifically to create cancer cells. Scientists have consistently stated that the chemical is far too dangerous to be used in agriculture. Yet agro-industry lobbyists have strong-armed several states into approving it for use on crop lands.

Earthjustice's experts have filed a lawsuit challenging the approval of this hazardous pesticide in California and are pushing the Environmental Protection Agency to ban its use nationwide. But they need your support to win this fight.

Help stop the use of cancer-causing methyl iodide on fields that produce our nation's food by making an urgent donation today.

In a letter to the EPA dated May 7, three Nobel Laureates in chemistry wrote that methyl iodide is "one of the more hazardous chemicals used in research labs and in the chemical industry." It is a potent neurotoxin, a thyroid function disruptor, and can cause birth defects and late-term miscarriages.

A chemical this dangerous has no place in fields that grow our food. But just last week farming operations in California began applying the pesticide to fields that will grow produce that could end up on your table.

We can reverse this toxic practice in California and across the country—but we need your support to go up against the well-funded agro-chemical industry.

Take a stand with us as we fight for safe food production. Make an emergency donation today.

Thank you for all that you do.


Trip Van Noppen Trip Van Noppen

Trip Van Noppen
President, Earthjustice

P.S. A cancer-causing neurotoxin has no place on fields that produce our food. Donate today to help us ban the use of methyl iodide.

Donate Today!

To cookie or not to cookie?

This Kat is often perturbed that the advertisements in her Gmail and FaceBook accounts seem to be personalised through no action by her. Indeed, recent advertisements on both sites have related to wine, law, cats, Sydney and/or army boot camp training (the last, of course, being a complete mystery). It with interest, then, that this Kat has been following the progress and (lack of) implementation of the EU 'Cookie Directive'.

For those unfamiliar with the concept of a 'cookie', it is a file which is stored on your computer by your web browser when you visit a website. A cookie can be used for remembering log in details, site preferences, shopping cart contents and anything else that can be accomplished through storing text data. Accordingly, cookies are a provide a wealth of useful information for targeted advertising.

The EU first enacted provisions relating to cookies in 2002 in the form of the ePrivacy Directive. In the UK, this was implemented by Regulation 6 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR):
Confidentiality of Communications
6. (1) Subject to paragraph (4), a person shall not use an electronic communications network to store information, or to gain access to information stored, in the terminal equipment of a subscriber or user unless the requirements of paragraph (2) are met.

(2) The requirements are that the subscriber or user of that terminal equipment -
(a) is provided with clear and comprehensive information about the purposes of the storage of, or access to, that information; and
(b) is given the opportunity to refuse the storage of or access to that information.

(3) Where an electronic communications network is used by the same person to store or access information in the terminal equipment of a subscriber or user on more than one occasion, it is sufficient for the purposes of this regulation that the requirements of paragraph (2) are met in respect of the initial use.

(4) Paragraph (1) shall not apply to the technical storage of, or access to, information—
(a) for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network; or
(b)where such storage or access is strictly necessary for the provision of an information society service requested by the subscriber or user.
That is, websites had to tell users how they used cookies and how users could ‘opt out’ if they objected. Many websites did this by putting information about cookies in their privacy policies and giving people the possibility of ‘opting out’.

On 25 December 2009 an amended Directive came into force which had to be implemented into the national law of Member States by 25 May 2011. Accordingly, Regulation 6 of the Privacy and Electronic Communications (EC Directives) (Amendment) Regulations 2011 reads like this:
Confidentiality of Communications
6 (1) Subject to paragraph (4), a person shall not store or gain access to information stored, in the terminal equipment of a subscriber or user unless the requirements of paragraph (2) are met.

(2) The requirements are that the subscriber or user of that terminal equipment--
(a) is provided with clear and comprehensive information about the purposes of the storage of, or access to, that information; and
(b) has given his or her consent.

(3) Where an electronic communications network is used by the same person to store or access information in the terminal equipment of a subscriber or user on more than one occasion, it is sufficient forthe purposes of this regulation that the requirements of paragraph (2) are met in respect of the initial use.

(3A) For the purposes of paragraph (2), consent may be signified by a subscriber who amends or sets controls on the internet browser which the subscriber uses or by using another application or programme to signify consent.

(4) Paragraph (1) shall not apply to the technical storage of, or access to, information--
(a) for the sole purpose of carrying out the transmission of a communication over an electronic communications network; or
(b) where such storage or access is strictly necessary for the provision of an information society service requested by the subscriber or user.
Therefore, a website operator required informed consent from the user before activating cookies. This amendment came into force on 26 May 2011.

Now 26 May 2011 was last Thursday. So why are UK websites not asking this Kat for 'permission to cookie'?

The answer is that Ed Vaizey, Minister for Culture, Communications and Creative Industries, and the Information Commissioner's Office (ICO) have reached a prior agreement concerning enforcement of the amended Regulations.

The ICO, as enforcer of UK data privacy legislation, was of the view that the new regulation needed to be interpreted strictly and immediately. Indeed, on the front page of its own website, the ICO states:
'On 26 May 2011, the rules about cookies on websites changed. This site uses cookies. One of the cookies we use is essential for parts of the site to operate and has already been set. You may delete and block all cookies from this site, but parts of the site will not work. To find out more about cookies on this website and how to delete cookies, see our privacy notice'.
Users are then invited to tick a box to accept cookies from the site.

However, the government was not so enthusiastic. In particular, it was concerned about the possible detrimental effects on UK online retailers: the burdensome necessity of obtaining consent from users could make online shopping so cumbersome and intrusive that consumers would use US sites rather than UK sites.

On Wednesday, Mr Vaizey stated in a press release that ‘there will be no immediate changes to how UK websites operate as a result of new EU rules’. Rather, he stated that the government would work with website operators to ‘come up with workable technical solutions’. In a press release, the ICO stated that website operators have up to one year to ‘get their house in order’ and that ‘this does not let everyone off the hook’.

The IPKat agrees with Mr Vaizey’s earlier comment at the CBI forum on e-privacy and the digital economy that the new cookie provisions were ‘a good example of a well-meaning regulation that will be very difficult to make work in practice’.

Merpel wonders, if she chooses not to accept cookies from a particular site, whether she can somehow stop that same site continually asking her if she wants to accept cookies (because that site cannot set a cookie indicating her 'no cookie' preference)?