#copyright

Jan 12, 2022
3 min

How do you interpret a copyright contract?

The Court of Appeal has upheld a ruling by HHJ Hacon in the IPEC (first covered on the blog here) that copyright in a number of literary works consisting of computer software belonged to the claimant’s employer. The Court of Appeal’s decision is Penhallurick v MD5 Ltd. At first instance, HHJ Hacon found that (i) all the relevant works were created in the course of employment and that, (ii) in any case, rights were assigned to the employer by a November 2008 agreement. Interp

Jan 12, 2022
2 min

What's a website blocking order and why is it useful?

Nintendo was granted an early Christmas present by the Honourable Mrs Justice Joanna Smith DBE - a website blocking order (Nintendo Co Ltd v British Telecommunications Plc & Ors). What is a website blocking order? The order requires the six biggest UK internet service providers (ISPs) to block access to two websites, NSW2U and NSWROM (as well as related sites) that provide links to sites offering pirate Nintendo Switch games. There has been a long history of website blocking

Oct 4, 2021
2 min

A rotten judgment for John Lydon

Who has the power to control the use of the Sex Pistols IP rights? That was essentially the question decided by Sir Anthony Mann in Jones & Anor v Lydon & Ors, a decision of the High Court in August 2021. Most of the former band members want to give permission for use of its music in a planned TV series directed by Danny Boyle, but John Lydon (Johnny Rotten) opposes that permission. Two of the band members brought the action, seeking to enforce an eight-paragraph 1998 Band Me

May 8, 2021
2 min

Assessing damages is never easy

A recent judgment from the IPEC provides a warning for anyone pursuing damages claims in IP cases. The process is time consuming, complex and may cost more in legal fees than the ultimate award. There are several bases upon which damages can be awarded. This case looks at loss of an opportunity and the notional royalty which might have been charged for the use. It also considered whether a damages uplift was justified on the basis of the flagrancy of the infringement. The alt

May 1, 2021
2 min

Database extraction was authorised

This was a complex dispute concerning a claims management database. It involved alleged infringement of a database right, misuse of confidential information and breach of fiduciary duty. It was decided by His Honour Judge Cawson QC, sitting as a judge of the High Court in Manchester, on 19 March 2021. The claim was brought by claims management company DRSP against Thomas O’Connor and Octax Limited. Mr O’Connor worked for DRSP until February 2018, after which he became a consu

May 1, 2021
3 min

Which IP rights subsist in an XML Schema?

Disputes relating to software are often complex, with multiple parties and issues involved. However, they can also illuminate important questions. Software Solutions Ltd & Ors v 365 Health and Wellbeing Ltd & Anor, a judgment by HHJ Melissa Clarke in February 2021, is a good example. While numerous companies were involved in the case at various stages, the question essentially was whether version 5 of a mental health application called Beating the Blues (BTB v 5) infringed co

Mar 9, 2021
2 min

Who owns copyright works that an employee creates at home?

One of the highlights of the pandemic has been the opportunity to catch up on a lifetime's worth of TV. Fortunately, there are some truly great TV shows including the comedy Silicon Valley. It is not for nothing that this great TV show has been described as a documentary! It confronts many of the business issues that face the tech industry in the US and beyond. One of my favourite episodes is a mini courtroom drama (a binding arbitration, if we're going to be precise). The ep

Feb 22, 2021
2 min

Why contracts are in writing: lessons from an oral trade mark co-existence agreement

A recent decision by the Intellectual Property Enterprise Court reveals the problems that can arise when businesses that once shared name fall out and do not have a clear agreement in place. The case covered 22 issues(!) in total, including copyright infringement, trade mark validity and infringement and passing off. Following a two-day trial in November, Deputy High Court Judge David Stone handed down his judgment on 18 January 2021. The case was brought by Cormeton Fire Pro

Feb 2, 2021
2 min

Joint authorship dispute resolved after retrial

The long-lasting litigation over the authorship of the screenplay for the 2016 film “Florence Foster Jenkins” has resulted in the court finding that Julia Kogan (the Claimant) was a co-author of the screenplay with the contribution valued at 20%. Mr Justice Meade’s decision came following a retrial after an earlier judgment was overturned by the Court of Appeal. This is an unusual decision which reflects a changing approach toward defining artistic contribution. Ms Kogan was

Feb 2, 2021
2 min

Brand investment pays off for Dr Martens

Dr Martens, the footwear and clothing brand that defined my teens, is launching an initial public offering (IPO) which could value the company at £3.7 billion! The company is currently majority owned by Permira (the UK private equity firm). One reason behind this high valuation is that it is a fashion brand that truly recognises the value of its IP (even if it famously once failed to secure the copyright in its logo - see below!).* It sells 11 million pairs of boots and shoes

Jan 28, 2021
2 min

Joint authorship dispute resolved after retrial

Sep 4, 2019
2 min

Louboutin - red soles and trade mark protection

The red sole on the base of Louboutin shoes has been the focus of both media and legal attention for many years. There has been extensive litigation in the USA about the red sole (see here). In Europe, the issues have focused on Louboutin's various European trade marks for the red sole in relation to "Footwear (other than orthopaedic footwear)" in Benelux and "High-heeled shoes (except orthopaedic footwear)" at EUIPO. The mark's description refers to Pantone 18.1663TP and not

Mar 10, 2019
1 min

European Fashion Law: The book is out!

We have had the launch parties and the book is officially OUT NOW! I've had such lovely feedback already. I hope you both enjoy it and find it incredibly useful for you in your business or legal practice. What's European Fashion Law about? Fashion is big business - it has complicated supply chains, may involve large property portfolios of retail and warehouses and affects millions of employees and contractors. Fashion brands and the associated intellectual property are extrem

Mar 1, 2019
2 min

Brexit & IP - what you need to know

Brexit may be nearly upon us. If this happens after 29 March there are various short term consequences to registered rights in the UK and EU. You don't necessarily need to refile a UK mark but forewarned is forearmed. Registered EU trade marks All existing EU trade marks will still cover the UK post Brexit but they will change identity. From Brexit day, EU trade marks in the UK will automatically convert into “Comparable Trade Marks (EU)”. No fee is payable and the owners of

Jan 5, 2019
2 min

Smells like IP infringement?

The fashion industry is no stranger to IP disputes. In the last year, The IPKat has written about disputes involving Zara, Nike and Nike and some innovative anti-counterfeiting from Deisel (sic). Whether it is competitor "inspiration" or a designer who inadvertently sells their name with their company the battles are myriad and go to the core of questions such as what is creativity and where the line is between standard design features and protectable IP rights. The latest de

Nov 27, 2018
2 min

Unregistered designs - the unknown but super useful IP right

Just under four years ago the UK Intellectual Property Office commissioned research to address the lack of existing data on design infringement. The results of that research were published last week. My key takeaway is that the designs community does not appreciate the value of designs - particularly unregistered designs. This post aims to change that. Unregistered vs unregistered designs In the report, unregistered designs were rated at the bottom of the list of useful right

Nov 25, 2018
6 min

Star Athletica v Varsity Brands sent shockwaves through the fashion and copyright worlds but is it the game changing decision some have suggested? The Supreme Court decision is not about whether the cheerleader uniforms met the requisite level of creativity to qualify for protection as copyright works (although both majority opinions did note that the level of creativity required is "extremely low" following Feist). Instead, this case was concerned with art as it is applied t

Nov 25, 2018
3 min

How much is a photograph worth?

Photography cases have occupied a lot of the early years of the revamped IP Enterprise Court (or IPEC) more than any other type of case. For example, Temple Island v New English Teas (the red bus case), Hoffman v D.A.R.E, Delves Broughton v House of Harlot, Celebrity Pictures v B Hannah. One photography focused case which is of particular interest in the context of damages is Sheldon v Daybrook [2013] EWPCC 26. This case is relatively unusual by English court standards becau

Nov 25, 2018
7 min

How can you protect data?

Data was described by The Economist as as the new oil. Every valuable asset tends to be protected by IP in some shape or form and data is no exception. It is usually protected by a combination of lengthy contracts, trade secrets/the law of confidence, copyright and/or database right. Unsurprisingly, it is also often the subject of litigation. Technomed v Bluecrest [2017] EWHC 2142 is a recent High Court decision about the rights in databases and the potential IP dangers, incl

Nov 25, 2018
2 min

Using blockchain technology to manage IP rights

This article was first published on Lexis®PSL Intellectual Property on 25 September 2018. Click for a free trial of Lexis®PSL. What is blockchain? Blockchain is essentially any form of “decentralised” database. Unlike traditional databases where there is a single “true” version which is stored centrally, in a blockchain system, “true” copies of the database are shared with every computer which is part of the blockchain network. Every time there is a change to the database, fo