Intellectual Property Law Internet Law IT Law Computer Law

The team behind the social BitTorrent client Tribler is responsible for the core P2P technology for the project, dubbed P2P-Next. The project received $22 million (15 million Euro) from the European Union and another $6 million (4 million Euro) is brought in by some of the partners.

More details in the article available at www.torrentfreak.com website. So it looks like after couple of years of different attempts to penalize the technology as they tried in the US, finally we see more business approaches. Quite interesting.

“I strongly believe that copyright protection for Europe’s performers represents a moral right to control the use of their work and earn a living from their performances. I have not seen a convincing reason why a composer of music should benefit from a term of copyright which extends to the composer’s life and 70 years beyond, while the performer should only enjoy 50 years, often not even covering his lifetime It is the performer who gives life to the composition and while most of us have no idea who wrote our favourite song – we can usually name the performer.”

Commissioner Charlie McCreevy. The European Commission press (IP/08/240) release on February 14, 2008.

No negative impact on consumer prices

The Commissioner stressed that the proposal should not have a negative impact on consumer prices. “Empirical studies on the price effects of copyright protection show that the price of sound recordings that are out of copyright is not necessarily lower than that of sound recordings in copyright.

No negative impact on Europe’s external trade balance

The Commission has also looked at the trade implications of a longer term of protection and provisionally concludes that most of the additional revenue collected in an extended term would stay in Europe and benefit European performers. This is good for promoting Europe’s performers and the cultural vibrancy of European sound recordings.

Hey Charlie are those all negative impacts’ factors you were able to consider?

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) do not require the Member States to lay down, in a situation such as that in the main proceedings, an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings. However, Community law requires that, when transposing those directives, the Member States take care to rely on an interpretation of them which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.

Details about this case in the judgment C-275/06, Promusicae.

There is a very interesting article available at www.laughingsquid.com website about Best Buy’s reaction regarding a criticism of their business. Best Buy’s lawyer wrote that this trademark is well-known and famous. For a comparative argument I’d point him at the CFI case T-122/01, Best Buy Concepts v. OHIM, OJ C 213, 06.09.2003, p. 30.

28.
As regards, first, the word mark best buy, the Court notes that it is composed of ordinary English words which clearly indicate an advantageous relation between the price of the services covered by the application and their market value.

29.
It is, therefore, perceived immediately by the relevant public as a mere promotional formula or a slogan which indicates that the services in question offer the best buy possible in their category or the best price-quality ratio, as noted by the Board of Appeal in paragraph 17 of the contested decision.

Update on December 13, 2007.
Best Buy officially regrets sending the C&D letter. More details at www.laughingsquid.com website.

My dear friend, great translator and interpreter and talented illustrator Artur Zawiasiński has sent me a link to www.stijlfigurant.nl website. You may also read more comments about the action against T-mobile’s trade mark/service mark at www.colourlovers.com website.

I would like to add a short legal comment on this whole issue. The US Supreme Court ruled in the case Qualitex Co. v. Jacobson Products Co., Inc., 514 U.S. 159 (1995), that:

a color may sometimes meet the basic legal requirements for use as a trademark.

The Court of Justice of the European Communities in its judgement from May 6, 2003, in the case C-104/01, Libertel Groep BV v. Benelux Merkenbureau, OJ C 146, 21.06.2003, p. 6, ruled that:

in answer to the questions referred to it by the Hoge Raad der Nederlanden by order of 23 February 2001, hereby rules:

1. A colour per se, not spatially delimited, may, in respect of certain goods and services, have a distinctive character within the meaning of Article 3(1)(b) and Article 3(3) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, provided that, inter alia, it may be represented graphically in a way that is clear, precise, self-contained, easily accessible, intelligible, durable and objective. The latter condition cannot be satisfied merely by reproducing on paper the colour in question, but may be satisfied by designating that colour using an internationally recognised identification code.

2. In assessing the potential distinctiveness of a given colour as a trade mark, regard must be had to the general interest in not unduly restricting the availability of colours for the other traders who offer for sale goods or services of the same type as those in respect of which registration is sought.

3. A colour per se may be found to possess distinctive character within the meaning of Article 3(1)(b) and Article 3(3) of Directive 89/104, provided that, as regards the perception of the relevant public, the mark is capable of identifying the product or service for which registration is sought as originating from a particular undertaking and distinguishing that product or service from those of other undertakings.

4. The fact that registration as a trade mark of a colour per se is sought for a large number of goods or services, or for a specific product or service or for a specific group of goods or services, is relevant, together with all the other circumstances of the particular case, to assessing both the distinctive character of the colour in respect of which registration is sought, and whether its registration would run counter to the general interest in not unduly limiting the availability of colours for the other operators who offer for sale goods or services of the same type as those in respect of which registration is sought.

5. In assessing whether a trade mark has distinctive character within the meaning of Article 3(1)(b) and Article 3(3) of Directive 89/104, the competent authority for registering trade marks must carry out an examination by reference to the actual situation, taking account of all the circumstances of the case and in particular any use which has been made of the mark.

I think that if someone is really interested in industrial property law issues then such a person would admire this part of human creation as well, for instance typography art. I track news about this kinf of activities in the Internet all the time and I found a list of music videos that use typography effects lately. The whole playlist is available at www.yuxt.com website.

Now, maybe a little bit more about the law. Christoph Mueller, who is the author of Mom’s typewriter typeface which as you may have noticed I used in the topic of this post, can seek for protection of his creation based on industrial property law regulations within Poland and European Union. Unfortunately, unless such work is a digital one (popular term font) he won’t be able to get proper protection from the US copyright law (sic!). I recommend you to read the judgment in the case Adobe Sys. v. Southern Software, Inc., 45 U.S.P.Q.2D (BNA) 1827, 1998 U.S. Dist. LEXIS 1941 (D. Cal. 1998) and 37 C.F.R. § 202.1(e) (1998). Additionally, it is always worth reading some paper. Check, J. L. Mezrich, “Extension of Copyright to Fonts—Can the Alphabet be Far Behind?”, The Computer Law Review and Technology Journal 1998. PDF file, 28 kB.

September 17, 2007, The Court of First Instance will rule in the case Microsoft v. Commission, T-201/04, OJ C 294 of 02.12.2006, p.56 (PDF file).

Annul the Commission Decision of 24 March 2004 in proceedings regarding the application of Article 82 of the EC Treaty (Case COMP/C-3/37.792 Microsoft), concerning competition conditions in the markets of work group server operating systems and multimedia players or, in the alternative, annul or reduce the fine imposed on the applicant.

Meanwhile, if you are a Polish language speaker/reader there is also a very interesting post and discussion started by Piotr Waglowski on his website. It concerns “foggy” lobbing PR action which is dedicated to protecting companies consumers. In general, the goal is to raise the awarness that one comapny has almost 80% of the Internet ad market share within the European Union. We wonder who sponsors this so-called “social movement” with the help of PR company. As someone points such action is visible in London’s tube since two months.

The National Legal and Policy Center organization has published at www.nlpc.org website a short article in which it presents a study about movies uploaded and available in Google Video that were put there without a consent or a license agreement obtained from copyright holders. Even if the NLPC does not say that, and I do not want to speculate, I just wondered for a second if this research was somehow sponsored by Viacom. I recommend to check Viacom v. Youtube, 2007 U.S. Dist. Ct. Pleadings 2103 (U.S. Dist. Ct. Pleadings 2007) to all readers interested in this dispute. Anyway, in my humble opinion, there is a key question in the NLPC article. Namely:

After all, if an ethics watchdog group with a limited budget can find scores of copyrighted productions, why can’t Google?

I am not a legal adviser of the National Legal and Policy Center but I can disclose them the answer to their simply question. Well, because it does not have to! Why? The explanation is provided in the Online Copyright Infringement Liability Limitation Act, title II of the Digital Millennium Copyright Act, Pub. L. 105-304, 112 Stat. 2860, 2877 (Oct. 28, 1998), PDF file. Provisions of §512(a)(1-5) and §512(c)(1)(A-C) clearly state exclusions afforded for the potential ISP’s liability in case of such situations as described by the NLPC and also very precisely advice what steps should be taken by a copyright holder to remove contested materials.

What is more interesting, a similiar regulation being in force in The European Union, Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (’Directive on electronic commerce’), Official Journal L 178 , 17/07/2000 P. 0001 - 0016, in its article 15 clearly provides:

No general obligation to monitor

1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

I have nothing more to add. At least it was free advice right?

The European Commission opened EUtube channel at www.youtube.com website.

I wrote about Wendy Seltzer and her problems with so-called “DMCA notice of takedown” in a previuos post. It is kind of irony that NFL’s lawyers have to deal with one of founders of the Chilling Effects (www.chillingeffects.org website). I will have a lot of fun watching how things are developing. I wanted to write about that a little bit more but as you already noticed, Wikipedia has good articles in this subject matter. You may find similiar regulations in article 13 of Act of 18 July 2002 at providing services in the electronic way (PDF file, Polish language, I did my own translation of the Act’s title). Dziennik Ustaw of 9 September 2002. No 144 pos. 1204. Adoption of this legal act was necessary because of the harmonization process of the Polish legal system with the European Union law. Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market. Official Journal L 178 , 17/07/2000 P. 0001 - 0016. Article 14 of the Directive provides regulations that relate to the subject matter discussed at the beggining of this post.
Meanwhile, Tzy Wen (he is a creator of iPhone’s emulation software for Pocket PC devices - if you do not remember) was also convinced about effectiveness of those regulations when Youtube removed his movie (this link contains a file in FLV format, I wrote about that in the post titled Apple do not annoy me) and they informed him about reasons of this action about three weeks after they removed the movie. You can read about that at www.tzywen.com website. There is also available some preliminary statement from Tzy Wen about our cooperation and plan to release this iPhone emulation software.

You may read that on February 2, oscypek as a first regional product from Poland will receive European Union patent - protected designation of origin. Such information is directly taken from the article with also not so well-chosen title “Oscypek with European Union’s patent” which is available at www.onet.pl website (I am sorry English readers it is in Polish language). I will not refer to mistakes written in this article because it’s hopeless. I am just happy that this tasty product will be the first Polish Protected Designation of Origin.

The DG Internal Market is between nominees for manipulating a consultation on EU patent policies. More details at www.worstlobby.eu website. Very impressive initiative.

As editors of www.dobreprogramy.pl news website inform us, Microsoft is going to sell its new operating system Windows Vista in changed a lot packages. Those will be plastic boxes. I wonder what protection will they seek for this kind of stuff. So far there is Community Trade Mark no 004510749. We can read in the application (according to the Nice Classifiaction) that it is designated for computer software, namely operating system programs and publications, namely, user manuals, instruction guides, reference guides, newsletters, magazines, books, all about computer operating systems; pens, pencils, markers, stationery, stationery-type portfolios, clipboards, desk sets, pen and pencil holders, mounted and unmounted photographs, posters, magnetic boards, memo pads, binders, staplers, paperweights, paper coasters, calendars, notebooks, book covers, sticker books, and greeting cards.
What’s more interesting there is a pending opposition based on the earlier priority.

I’d like to add more about issues I wrote about in previous posts.. Check www.logo-competition.eu website devoted to the EU’s 50th anniversary logotype competition. There are some facts about the winner and two other logos.
Community trademarks, Underground Ernie (005088737), London Underground (001101336) and the most identifiable symbol of the London’s tube that is Underground (003966082) mark. CTMs search is available at www.oami.europa.eu website (no comments about the functionality). What is more interesting there is a pending opposition against the last mark.