Wednesday whimsies

If you subscribe to the bound volume service of the European Trade Mark Reports (ETMR), published monthly by Sweet & Maxwell and, coincidentally, edited by IPKat blogmeister Jeremy, your handsome yellow tome, containing over 1,100 pages of headnoted judgments from European and national courts, should have arrived.  Check your terrestrial letterbox!

The Intellectual Property Lawyers Organisation (TIPLO) hosts its spring [if you can call it that, mutters Merpel] event on Tuesday 26 March – "Leveson and its consequences". This promises to be a thought-provoking and critical view of the recent Leveson Inquiry into the culture, practices and ethics of the press and its implications, including

• the proposed press regulatory body with considerable enforcement powers.
• a proposed inquisitorial arbitration service for privacy and defamation claims against the press.
• power to award exemplary damages.
• amendments to data protection law and the powers of the Information Commissioner. 

Speakers are Mr Justice Peter Kelly, Keith Mathieson (partner, RPC) and Sir Louis Blom-Cooper QC -- but for many mortals the main attraction is the dinner. For more information, click here.  You can register and pay online.  TIPLO is happy to accept payment by cheque or PayPal.

Coming up on 24 April 2013 is the Competition Law Association's 15^th Burrell Competition Lecture and Dinner, "The New Competition & Markets Authority: Aspirations and Challenges". Speaker: Alex Chisholm. Venue:  Middle Temple Hall, Middle Temple, London EC1Y 4AG, Middle Earth ... Click here for details.

The Jacques Lassier Prize, worth €1,830, is awarded for a written work or dissertation on a competition law subject (covering both antitrust law and unfair competition law, including IP related matters). Entriess must have been produced or dissertations defended in the two years leading up to the date of the closure of the competition.  The Prize is open to young individuals (these being those who are under 35 on 31 April 2013 [according to the organisers who, unlike Merpel, may have forgotten how many days there are in April], who are individual members of the International League of Competition Law (LIDC) or residents of a country where there is an affiliated national group (such as the Competition Law Association in the UK). Full details of the Prize rules can be found on the CLA’s website here.  If you're not planning on entering but are merely curious, details of earlier prizes and winners can be found here. 

Writing on behalf of Prospect, the union that represents patent examiners in the United Kingdom, Eleanor Wade refers to the continuing discontent of Intellectual Property Office (IPO) staff over the deleterious and demoralising effect of government pay policy (see earlier Katpost here).  Eleanor now tells the Kat that since, unfortunately, the IPO remains unable to resolve the dispute, its hands being tied by central government, members of Prospect members at the IPO are striking again today, alongside their colleagues from the Public and Commercial Services Union (PCS) union. Says Eleanor:

"We do regret any inconvenience caused to our customers by this action. However we feel that we have been left with no choice, since we believe that if the situation on pay is not resolved the impact on the IPO's ability to deliver for its customers will be much greater. We remain hopeful that a way of funding a fair and sustainable pay system from IPOs funds can be found". 

This Kat believes that the UK's examiners are not getting a good deal, but -- having been inconvenienced too many times over the years by strikes which have been called by others who regret his inconvenience but do not share it -- he has cultivated a dislike of strikes which he finds impossible to overcome.  He has said before, and will say again, that the best way for examiners to put pressure on the government is to say that, until they get a better pay deal, they will simply grant all applications that come before them.  That way, they will at least get applicants on their side.

Around the weblogs. A post on PatLit shows how difficult it can be for a patent owner, alleging infringement, to get a speedy trial on the basis that the allegedly infringing product made by the defendant will have become the de facto industry standard by the time a more distant trial is heard.  Over on the 1709 Blog, Ben Challis reports on some recent research to the effect that music copyright owners should basically stop worrying about online piracy.  There's a cry for help on Class 46 from Katfriends Uli Hildebrandt and Andreas Lubberger, who would like some assistance in compiling information about avoiding injunctions for Community trade mark infringement -- and, finally, Simone Blakeney on Art & Artifice reports on the call by Maria A. Pallante (head of the US Copyright Office) for better copyright protection for artists.


Following Eleonora's earlier post about Gita Hall May filingsuit against the producers of hit cable TV show Mad Men, which has attracted some comment, Miri Frankel has put together some further thoughts of her own. She writes:

"I’ve noticed that the reader comments appended to the Deadline article (here) highlight a profound confusion among the public as to the application of rights of publicity.  In particular, numerous opinions state that if M. Avedon owns the copyright in the photograph, Mr Avedon is the required approver of its use in Mad Men.    

However, astute Kat readers were quick to point out in the comments to Eleonora’s post that Ms May’s claims will be decided on the basis of state law regarding rights of publicity, rather than US Federal law.  States have developed their own laws regarding rights of publicity and privacy, and, in fact, many states (22 out of 50) have no such laws at all. 

One Kat reader asked:

“[I]f someone has consented to (and presumably been paid for) being photographed for an advert, it seems unlikely that additional use of that photo could be described as an "invasion of common law rights of privacy".

Such an analysis might very well be correct under the laws of states that protect only the right of privacy.  Those laws generally do not protect public figures who are newsworthy, have chosen to enter public life, or have otherwise consented to a certain level of publicity.  However, states that protect an individual’s right of publicity also give that individual control over how his or her name, image/likeness or voice is used commercially.  In some states, the right of publicity only extends to public figures and celebrities, and in other states the right is given to all individuals (because the right of publicity is born from the right of privacy).  

That western bastion of sunshine known as the State of California, home to Los Angeles and all of its Hollywood star and starlet residents, does indeed have right of publicity protections codified in its Celebrity Rights Act.  In the case of Ms May, I do wonder if the 9^th Circuit’s recent opinion in the Jersey Boys case, reported by Ben Challis in the 1709 Blog here, will ultimately weaken her case.  In particular, the producers of Man Men did not necessarily seek to “capitalize” on Ms May’s fame, but instead sought to draw viewers into the style of the 1950s and 1960s  by flashing a number of advertising images from that time period, including the Revlon ad in which Ms May modelled her Satin Set hairdo.  On the other hand, copyright infringement is quite different in nature from the highly personal claim of infringement of the right of publicity; Ms May might succeed because of the public interest in protecting an individual’s control over how her image is presented in connection with commercial ventures".  

Thanks, Miri, for these observations!