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Catalysts for Collaboration Launched!

by Hawley Johnson @ Global Freedom of Expression

More and more countries are adopting legislation that threatens human rights online. The Catalysts for Collaboration website encourages internet activists to collaborate across disciplinary silos…

The post Catalysts for Collaboration Launched! appeared first on Global Freedom of Expression.

Conflating a Journalist’s Criticism with Terrorism

by Hawley Johnson @ Global Freedom of Expression

Prosecutors in Turkey are hard at work putting journalists in jail for publishing articles critical of the regime of President Recep Tayyip Erdogan, citing their…

The post Conflating a Journalist’s Criticism with Terrorism appeared first on Global Freedom of Expression.

Guide for Judicial Operators on Agenda 2030 for sustainable development with emphasis on ODS 16

by Hawley Johnson @ Global Freedom of Expression

The United Nations Educational, Scientific and Cultural Organization (UNESCO) launched the Guide for Judicial sustainable development with an emphasis on the SDG 16.  Available online, this…

The post Guide for Judicial Operators on Agenda 2030 for sustainable development with emphasis on ODS 16 appeared first on Global Freedom of Expression.

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True Match Super Blendable Concealer | Ulta Beauty


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True Match Super Blendable Concealer by L'Oréal conceals acne blemishes and dark undereye circles while nourishing skin.

SUNDAY RILEY Space Race Kit Review

by Nicki Zevola Benvenuti @ FutureDerm

SUNDAY RILEY is my favorite Millennial brand (besides my own), as of yet: It’s classy but ingredient-conscious, sophisticated but science-based, and fun to use yet (in most cases) effective. Case in point: The new SUNDAY RILEY Space Race Kit contains three products with weird-enough sounding names to appeal to any Millennial, but enough high concentrations Read more »

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Russia: Content Analysis Serves as a Tool of Biased Courts

by Bach Avezdjanov @ Global Freedom of Expression

Magomednabi Magomedov, a Salafist imam, received a five-year prison term from a military court for giving an allegedly unlawful sermon in 2016 in Dagestan. To help…

The post Russia: Content Analysis Serves as a Tool of Biased Courts appeared first on Global Freedom of Expression.

L'Oreal "Transformers"

L'Oreal "Transformers"


Matthew C. Hart

Film and Commercials Editor

Court backs prosecutor over interview alleging corruption – and he gets his money back

by Hawley Johnson @ Global Freedom of Expression

By Emil Weber A European Court of Human Rights (ECtHR) judgment has backed a former prosecutor on his comments made in the press alleging corruption in the…

The post Court backs prosecutor over interview alleging corruption – and he gets his money back appeared first on Global Freedom of Expression.

The Authors' Take - Coty Germany v Parfümerie Akzente

by noreply@blogger.com (Eleonora Rosati) @ JIPLP

AG WAHL interprets competition provisions in relation to selective distribution agreements for luxury cosmetics

University of Southampton, School of Law

In his Opinion of 26th July 2017 in Coty Germany GmbH v Parfümerie Akzente GmbH, C230/16, Advocate General (AG) Wahl provided his interpretation of Article 101 TFEU and Regulation (EU) No 330/2010 (the Regulation). The request for a preliminary ruling came from the German Higher Regional Court (Oberlandesgericht Frankfurt am Main), and was made in the context of a dispute between cosmetics giant Coty Germany and one of its distributors, Akzente.
The question is whether Coty’s new selective distribution agreement, which prohibited the discernible use of third party websites, is precluded by EU antitrust provisions. Azkente wanted to use Amazon.de to market the goods, thereby gaining access to Amazon’s enormous active user base as well as lower marketing costs and the option to have orders fulfilled by Amazon itself.
Article 101(1) of the Treaty on the Functioning of the European Union (TFEU) prohibits agreements which distort competition, either by object or effect. Under the Regulation, vertical agreements are presumed to be exempted from Article 101(1)  TFEU via Article 101(3) TFEU, provided that neither the supplier’s nor buyer’s market share exceeds 30%.
Does the agreement distort competition?
According to the AG, the agreement falls outside Article 101(1) TFEU. This is because, when factors other than price are taken into account, Coty’s requirement does not cause appreciable anti-competitive effects.  In reaching this conclusion the AG adopted the view – extant in both competition and trade mark decisions – that a luxury product loses its value to the consumer if it becomes commonplace. The preservation of this ‘aura’ is therefore capable of offsetting anti-competitive effects. This qualitative assessment, or ‘appreciability’ test, is a source of uncertainty for parties when drafting agreements. The Opinion, if followed by the Court, should be welcomed by the Luxury Cosmetics industry, worth €203b in 2016. Its effect is to create a presumption that an agreement aiming to preserve prestige is not caught out, provided it is non-discriminatory and proportionate.
Clarifying Pierre Fabre
However, if the ‘object’ of an agreement is deemed to be anti-competitive, Article 101(1) applies and no qualitative analysis occurs. This, the AG explained, was what led the court in Pierre Fabre Dermo-Cosmétique , C-439/09, EU:C:2011:649 (Pierre Fabre), to declare ‘the aim of maintaining a prestigious image is not a legitimate aim for restricting competition’.  In that case an absolute ban on internet sales was classified as restriction by object. A full and much needed delineation of the ‘object’ category will have to wait for a future reference but a comparison between Pierre Fabre and the instant case indicates that proportionality is a key factor whether a ‘sufficient degree of harm’ has occurred.
The AG went on to confirm that, even if Article 101(1) did apply, the agreement would qualify for the Block Exemption under the Regulation. An agreement cannot benefit from the exemption if it is deemed to be a ‘hardcore restriction’. This is along the same lines as a restriction by object under Article 101(1), but more user-friendly because it sets out prohibited restrictions. The AG concluded that a restriction on discernible third party platforms constitutes neither a territorial limitation nor a restriction of passive sales.
So, a probable reprieve for luxury cosmetics suppliers, but the rapid evolution of the e-commerce sector means the proportionality assessment could soon favour distributors. Nor is the debate settled about law’s role in protecting prestige, although the interdependent evolution of trade mark law means the concept is fairly entrenched. 

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP).]

Editorial - The passing of the Golden Age of IP: Quo Vadis?

by noreply@blogger.com (Stefano Barazza) @ JIPLP

In his latest Editorial, editorial board member Neil Wilkof suggests that IP is experiencing a period of stagnation, after the Golden Age period of the 1980s. Neil argues that "there is a sense that IP has lost its commanding position as a prime source of value creation in a post-industrial world", looking at various explanations for such perception. Is the Golden Age of IP behind us?

The passing of the Golden Age of IP: Quo Vadis?  

Neil Wilkof*  

One of the more interesting features that accompanies the rise and decline of a phenomenon is the notion of a “Golden Age”. A “Golden Age” is invariably lodged in the past and usually it is only later generations that come to view it as such. Intellectual property is not immune to this trajectory. As we approach the home lap of the second decade of this century, it is becoming more and more likely that IP as we know it also has had its “Golden Age”. Looking at IP present, it is difficult to shake the impression that IP is in a state of stagnation. 
IP’s “Golden Age” was roughly the period of the 1980s, when patents, copyright and trade marks all came together to give IP a collective preeminence. The ascendance of patents emerged from a less hostile view to patents resting on a recognition of their pro-competitive effects, the potential of encouraging patenting in the West as a means to counter the perceived challenge from Japanese industry, and the promise of judicial streamlining of patent protection following the establishment of the US Federal Circuit Court of Appeals. 
As for copyright, notable was the US joining the Berne Convention and the changing perception of copyright protection from a quaint form of legal protection for books and the art world to the legal guardian of mass distribution of creative content as disparate as computer software and video cassettes. Trade marks underwent a transition from being viewed as a manipulative tool in the hands of advertisers for creating artificial consumer wants to a positive purveyor of consumer information and as a means for creating company value in the form of brand equity. At the international level, the foundations were being set down for the inclusion of IP protection within the framework of a new international trade law, culminating in the TRIPS Agreement. 
By the first decade of the 21st century, however, fortress IP was showing vulnerabilities in multiple directions. Patents were being attacked as providing the basis for patent trolling and other claimed patent misuse, leading some to question the entire patent system. Copyright protection was being viewed as toothless in the face of rampant copying on the internet, on the one hand, and too often inimical to the encouragement of content creation, on the other. Trade marks fared only marginally better, prized for the potential long-term and robust value in strong brands, but also coming under increasing attack as overprotecting trade marks as a form of property, even when there was no threat to origin or confusion. 
IP qua IP has not disappeared as a body of legal rights and protection. For example, patents will still be crucial in biotech, pharma and the like and strong trade marks will continue to be valuable. Taken as a whole, however, there is a sense that IP has lost its commanding position as a prime source of value creation in a post-industrial world. 
The main trigger for this decline is the ever-expanding penetration of digitization, where traditional IP protection—patents, copyright and trade marks, is viewed as less relevant. In their place, other types of intangible concern have increasingly taken centre stage. Most notable are issues of secrecy, privacy data protection and the quest for network effects leading to impregnable barriers to entry. The threat of a wide-scale security breach, leading to the unauthorized disclosure of valuable information, at both the commercial and private levels, may loom larger than any potential act of copyright or trade mark infringement. 
These developments have not passed by the IP academic community. One need only look at faculty websites. No longer are faculty staff satisfied with being identified as “Professor of Intellectual Property.” More and more, academic positions are characterized by the ampersand, such as a “Professor of Intellectual Property & Innovation” or “Professor of Intellectual Property & Internet Law.” Both “Innovation” and “Internet Law” are self-standing fields of inquiry. Intellectual property may well play some role in each of these fields, but one can legitimately ask whether expertise in IP justifies the ampersand. Or maybe it is merely a rational way to deal with the challenge posed by the fact that the Golden Age of IP, as we know it, may well be behind us. *

*Email: wilkof@bressler.co.il.  
(c) The Author(s) 2016. Published by Oxford University Press. All rights reserved.

April editorial - counterfeiting and pharmaceutical products

by noreply@blogger.com (Stefano Barazza) @ JIPLP


Seeking effective remedies for the growing epidemic of counterfeit pharmaceutical products 

During the course of 2016 the European Observatory on Infringements of Intellectual Property Rights (‘Observatory’) released several studies on the economic costs of IP rights’ infringement. The task of the Observatory is indeed to improve the understanding of IP rights and the negative consequences of infringement upon such rights.
The studies on the economic costs of infringement were carried out in nine sectors which are considered intensive in the registration and use of IP, ie: cosmetics and personal care; clothing, footwear and accessories; sports goods; toys and games; jewellery and watches; handbags; recorded music; spirits and wine; and, last but not least, pharmaceuticals.
The sectorial report on pharmaceuticals was published on 29 September 2016. The full report can be found on the website of the Observatory (at https://euipo.europa.eu/tunnel-web/secure/webdav/guest/document_library/observatory/resources/research-and-studies/ip_infringement/study9/pharmaceutical_sector_en.pdf).
The aim of these types of report is to provide empirical data on the costs of IP infringement. It takes into account the direct costs (effects in terms of lost sales and loss of employment), as well as indirect costs, including reduced sales and job losses in other sectors (eg sectors that supply to the pharmaceutical sector) and impact on public finances due to the losses in tax revenues.
The report reveals that in 2013 the production within the EU of pharmaceuticals was worth EUR 284 billion at wholesale prices. Employment in the sector was good for 1.1 million people in the EU. The principal countries involved in the production and trade of pharmaceuticals in the EU appear to be Germany, Ireland, France, and Italy.
The report contains data on a EU-wide level, as well as per EU country. From an EU-wide perspective the estimated total direct effect in terms of sales lost due to counterfeiting is €10.2 billion. When legitimate manufacturers and traders are confronted with lesser sales, this will of course have an impact on employment. As to the indirect effect, the report adds a further estimated €7.1 billion loss of sales in other sectors. The report estimates the total loss of employment at no less than 90,900 jobs in the EU. Finally, it is estimated that the total loss for public finances amounts to €1.7 billion.
Taking the above into account, it is important to continue the fight against counterfeiting. This is particularly so in the pharmaceutical sector, where not only economic interests are at stake but also possible health issues for patients and consumers alike. In this respect the Convention on the counterfeiting of medical products and similar crimes involving threats to public health of the Council of Europe (also known as the Medicrime Convention) is a step forward. The Medicrime Convention dates back to 2011 and already at that point in time emphasized that the pharmaceutical sector increasingly faced the problem of counterfeiting, among other things, because of the relatively low risk of detection and prosecution of trade in counterfeit products on the one hand, and the potential of high financial gains on the other.
The Medicrime Convention has so far been ratified by a handful of EU Member States, ie Spain, Hungary, Belgium, and France. The principal countries involved in the production and trade of pharmaceuticals in the EU, as established in the Observatory report have unfortunately not yet ratified.
The Medicrime Convention can however be a helpful tool in combatting counterfeit trade in pharmaceutical products, in that it not only provides criminal sanctions, but also preventive measures and protection of victims in a uniform and harmonized fashion. Furthermore, it promotes both cooperation between different authorities of the same Member States as well as international cooperation. For instance, it contains a provision according to which Member States shall consult each other to determine the proper venue for prosecution in case several Member States have jurisdiction. It could then be agreed that one Member State will be the sole prosecutor, thus avoiding duplication of procedures and rendering the combat against counterfeiting more efficient. Another interesting provision is the possibility to take foreign judgments into account when dealing with recidivism.
As the Observatory study reveals that combatting counterfeiting in the pharmaceutical sector remains an important battle, not only for the pharmaceutical companies holding IP rights, but also for consumers, patients and the public sector alike, future ratifications of the Medicrime Convention would therefore be applauded.

Court case strengthens workers’ right to keep correspondence private

by Hawley Johnson @ Global Freedom of Expression

By Emil Weber The case of a Romanian who was sacked from his office job in Bucharest has created stronger privacy protection standards, thanks to…

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Is the Term "Anti-Aging" Offensive? Activists Petition L'Oreal and Estee Lauder to Stop Using It

Is the Term "Anti-Aging" Offensive? Activists Petition L'Oreal and Estee Lauder to Stop Using It


The Hollywood Reporter

The request follows in the footsteps of Allure magazine announcing that it would no longer be using that phrase.

The Authors' Take - Stella McCartney v IMAX Srl

by noreply@blogger.com (Stefano Barazza) @ JIPLP

The protection of the ‘eco-friendly’ Falabella bag by Stella McCartney in a recent decision of the Court of First Instance of Milan


by Mario Pozzi

Roedl&Partner Law Firm, Milan – Italy


On 9 March 2017, the Court of First Instance of Milan granted protection to the Falabella Bag by Stella McCartney (Tribunale di Milano, Stella McCartney Ltd v IMAX Srl, Decision No 2790/2017). A competitor, Imax S.r.l., was found to have infringed the Community designs and trade marks owned by Stella McCartney Ltd. 

The Milan court first ascertained the validity of the designs and trade marks owned by Stella McCartney (in terms of novelty, individual character, distinctive character) and then declared Imax’s conduct infringing of the rights in the Falabella bag (thus ascertaining the likelihood of confusion risk). The bag marketed by Imax was very similar to Falabella, in that it replicated all its main characteristics (shape, chain with a faceted shape that follows the whole edge of the bag fixed to the bag with a visible stitching). In particular, the court considered that the fact that the materials of the bags were different was not sufficient in order to avoid a finding of infringement. 

For these reasons, the Court of First Instance of Milan ordered the withdrawal of the infringing bags from the market as well as prohibiting any repetition of the unlawful activity. 

As far as damages are concerned, the court awarded a sum of €80.000,00 calculated on the basis of the advantages obtained by the infringer. Moreover, the court awarded Stella McCartney moral damages. According to the court, the fact that Imax S.r.l. produced the infringing bags with leather was capable of causing a damage to Stella McCartney’s eco-friendly brand image.

Italian court have become more sophisticated and severe in assessing infringing activities. The “new” trend to compensate also moral damages is such as to grant IP owners, especially those operating in the field of fashion, greater protection and confidence in starting proceedings for the protection of their rights. Overall, decisions like the Falabella one could represent a good deterrent for wannabe infringers.


[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP).]

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Best for Eczema: Epiphany Therapeutics Eksem Moisturizing Body Cream Review

by Nicki Zevola Benvenuti @ FutureDerm

Of all the skin ailments out there, the one that I get the most questions about is eczema. Eczema is a very common medical condition, which may affect as many as 1 in 10 persons in the US (NationalEczema.org). Eczema typically exists of patches of skin become rough and inflamed, with blisters that cause itching and Read more »

The post Best for Eczema: Epiphany Therapeutics Eksem Moisturizing Body Cream Review appeared first on FutureDerm.

IT Cosmetics Secret Sauce Moisturizer Review

by Nicki Zevola Benvenuti @ FutureDerm

IT Cosmetics is one of those brands I imagine would be amazing as a late-night infomercial: Promise beautiful skin in 60 seconds! Use this “magic wand” to give yourself perfect skin! I’ve used their cosmetics periodically, and while full-coverage isn’t my style, it is nice to look flawless at all times (and from all angles) in Read more »

The post IT Cosmetics Secret Sauce Moisturizer Review appeared first on FutureDerm.

L'Oreal True Match Foundation Rose Ivory, 1.C at Ocado

L'Oreal True Match Foundation Rose Ivory, 1.C at Ocado


Ocado

L'Oreal True Match Foundation Rose Ivory, 1.C

Eminence Coconut Age Corrective Moisturizer Review

by Nicki Zevola Benvenuti @ FutureDerm

The is a natural moisturizer that is said to instantly tighten and lift skin with each application. As the 2017 winner of “Best Natural Moisturizer” by Dermascope’s Aesthetician’s Choice Awards, I had to see what all the hype was about. Keep reading to learn more about the science behind the key ingredients found in . Read more »

The post Eminence Coconut Age Corrective Moisturizer Review appeared first on FutureDerm.

Editorial - IP in China: Moving closer to the common law system for the sake of uniformity

by noreply@blogger.com (Eleonora Rosati) @ JIPLP

In our latest Editorial, Danny Friedmann reflects upon the latest trends in Chinese IP law, as well as the advantages of having harmonized IP regimes.

IP in China: Moving closer to the common law system for the sake of uniformity




To improve transparency, a uniform application of law, and thus legal predictability towards a commercial rule of law, on 12 April 2017 the Supreme People’s Court (SPC) promulgated an opinion that courts in the People’s Republic of China (China) have to take similar cases into account before making a decision.1 Article 6 of the SPC’s Opinion states:
“All levels of people’s courts shall give full consideration to the professional judges’ conferences and adjudication committee’s roles in summarizing trial experience unifying judgment standards; and on the foundation of improving working mechanisms such as consulting similar cases and judgment guidance; a mechanism is to be established requiring the search of similar cases and relevant cases, to ensure a uniform judgment standard for similar cases, and the uniform application of law.”2
The SPC’s opinion means that, while a precedential system will not be de jure binding, it will often be persuasive. China’s untenured judges already frequently make decisions according to the expectations of higher courts because they do not want to obstruct their careers. This opinion, however, also forces courts to take similar cases from courts of the horizontal level into account. The case law system will supplement the judicial interpretations of the SPC that must also guide and unify law.
China has realized that IP law is complex and requires judges to be well-versed in this particular area. Therefore it established specialized IP courts in Beijing, Shanghai and Guangzhou in 2014, and specialized IP tribunals in Nanjing, Suzhou, Chengdu and Wuhan in 2017. The latter, cross-regional tribunals, have jurisdiction for civil, administrative and criminal (“three-in-one”) IP cases, and are attached to the intermediary people’s courts of those respective cities. To further a uniform adjudication of IP law, the SPC has recommended to the National People’s Congress the establishment of an IP Appellate Court.
Besides setting up a specific IP adjudication infrastructure, China has prepared thoroughly for the implementation of a mechanism to apply IP law in a more unified manner. For a long time, case law in China was highly opaque, since it remained either unpublished or unmotivated. In 2010, the SPC established a system in which certain court cases, so-called Guiding Cases, were selected and reissued.3 The idea is that courts will cite the Guiding Cases.4 However, so far they have hardly been cited.5
In 2017, in its 16th batch, the SPC selected ten new IP cases as Guiding Cases.6 Around World IP Day 2017, there was an explosion of reissued case law by the Beijing IP Court, Shanghai IP Court, Beijing High People’s Court and many lower courts throughout China’s provinces. All came up with their own typical, model, innovative or Top 10 IP cases.7 To make sense of this profusion of case law, the Beijing IP Court, which has become the centre for IP case law in China,8 provided a hierarchy of persuasiveness in precedence: 1. SPC Guiding Cases; 2. SPC annual cases; 3. other SPC cases; 4. High People’s Court model cases; 5. High People’s Court reference cases; 6. Other prior cases from High People’s Courts; 7. Intermediate People’s Court precedent; 8. Basic People’s Court precedent; 9. Foreign case precedent. Chinese courts can work their way down from the most persuasive to lower levels of persuasive authority.9
After the explosion of case law, these Guiding, typical, model, innovative or Top 10 cases are helping to prune China’s IP case law and distinguish relevant from non-relevant case law.
China’s civil law system, enriched by this hybrid precedential process, especially in combination with data analytics, could potentially improve both the courts’ quality of IP decisions and economy of justice.

Footnotes

1
SPC’s Opinions on Putting a Judicial Responsibility System in Place and Improving Mechanisms for Trial Oversight and Management, 12 April 2017, China Court News, 12 April 2017, available in Chinese: http://www.chinacourt.org/law/detail/2017/04/id/149382.shtml.
2
Ibid.
3
SPC promulgated the Provisions of the Supreme People’s Court on Case Guidance Work, 26 November 2010. The China Guiding Cases Project, Stanford Law School, led by Mei Gechlik, is making such Guiding Cases accessible into Chinese and English and provides a platform for scholarly interpretations, see here: https://cgc.law.stanford.edu/guiding-cases/.
4
Detailed Implementing Rules on the “Provisions of the SPC Concerning Work on Case Guidance”, passed by the Adjudication Committee of the SPC on 27 April 2015, issued on and effective as of 13 May 2015, Stanford law School China Guiding Cases Project, English Guiding Cases Rules, 12 June 2015 Edition, available at: http://cgc.law.stanford.edu/guiding-cases-rules/20150513-english.
5
In a period of five years, Guiding Cases were only cited 239 times out of upwards of 10 million cases per year, according to research by Peking University. Jeremy Daum, The Curious Case of China’s Guiding Cases System, China Law Translate, 21 February 2017, available at: http://www.chinalawtranslate.com/the-curious-case-of-chinas-guiding-cases-system/?lang=en#_edn2.
6
On 9 March 2017, the SPC issued the 16th batch of new Guiding cases which are ten cases pertaining to IP: Numbers 79-86 are civil cases and number 87 is a criminal case. A summary of these cases can be found here in Chinese: ‘SPC, notification of 16th batch of Guiding Cases involving intellectual property rights, China Court News, 9 March 2017, available in Chinese at: http://www.chinacourt.org/article/detail/2017/03/id/2575036.shtml.
7
For example: SPC issued 10 Typical IP Cases, 24 April 2017; Beijing IP Court issued 18 (sic) Typical Cases on bad-faith registrations of trademarks, April 2017; Beijing High People’s Court issued Top 10 Typical and Top 10 Innovative IP Cases Court, 20 April 2017; Shanghai Pudong New Area District Court issued Top 10 IP Cases, 13 April 2017.
8
It was announced at a conference on 22 September 2015, that the Beijing IP Court will be the centre for IP case law.
9
According to Daum, the Beijing IP Court issued the Guiding Work Implementation Methods (Draft) which was not yet publicly available. Article 7 (from most to least persuasive): Jeremy Daum, ‘Unprecedented: Beijing IP Court’s use of ‘guiding cases’, China Law Translate, 31 August 2017, available at: http://www.chinalawtranslate.com/beijing-ip-court-making-new-precedent-on-guiding-cases/.

Special issue on IP developments in Africa - what's in it?

by noreply@blogger.com (Stefano Barazza) @ JIPLP

Our March issue is a special issue dedicated to intellectual property protection in Africa. Our own Marius Schneider has collected and edited several contributions that explore a number of topical issues across the entire spectrum of IP: from plant varieties and food security, to utility model certificates in Kenya, copyright law in South Africa, traditional knowledge in Kenya, and much more. A great thank you to all our contributors and to Marius for putting together an exciting and informative issue that we believe will be of great interest to our readers all around the world! 

If you are not a subscriber, please note that all the articles of the special issue are freely available - we hope that this will encourage further research and engagement with the issues, opportunities and challenges discussed in these contributions. Of course, we welcome submissions from authors who wish to develop further analyses of IP in the African context. 


Editorial

Current Intelligence

Articles

From GRUR Int.

IP in Review

Can You Mix Probiotics and Mineral Makeup?

by Nicki Zevola Benvenuti @ FutureDerm

An interesting question that I’ve been asked recently is whether or not you can mix probiotics and mineral makeup. The truth is, I have mixed feelings about both of these topics on their own, let alone mixing them together. Below I’m going over the benefits and drawbacks of both probiotic skincare and mineral makeup separately, Read more »

The post Can You Mix Probiotics and Mineral Makeup? appeared first on FutureDerm.

L'Oréal Professionnel Serie Expert Vitamino CC Cream (150ml)

L'Oréal Professionnel Serie Expert Vitamino CC Cream (150ml)


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L'Oréal Youth Code Product Review - FutureDerm

L'Oréal Youth Code Product Review - FutureDerm


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L'Oreal Youth Code contains probiotics and antioxidants, which have been shown to improve skin moderately. This product is best for younger persons.

Relaxing Tips for Color-Treated Hair

by @ The Glamour Shop: Latest News

You want to be very cautious when relaxing color treated hair. If you do it the same day as your perm, when the cuticle layers of your hair are more open from the relaxer or perming process, the color will penetrate deeper into the hair shaft. This is both better for the conditioning benefits as well as making the color last longer. If it's a semi or demi-permanent color like SoftSheen-Carson's Dark and Lovely Reviving Color, they may also be done the same day, depending on the condition of your hair. However, for all permanent color, such as Dark and Lovely Permanent Color or Dark and Lovely Color Confidence for 100% gray coverage, we recommend that you wait at least 2 weeks after your perm or relaxer. This is the best possible timing for coloring relaxed or permed hair.

If you have color in your hair and plan to swim at any time in chlorinated water, you must protect your hair. The best way is to wear a swimming cap. If you can't, or won't do that, the next best way is to thoroughly wet your hair before you go into the water and apply some conditioner such as Roots of Nature® Reconstructing Deep Treatment or Roots of Nature Healing Thickening Cream and don't rinse it out. If you don't do this, the chlorine will absorbed into your hair and may cause your hair color to fade, develop a green cast or for darker colors to take on a brassy tone. If you already have the problem described above, you will need to do one or more clarifying treatments that will chelate out the chlorine from your hair. SoftSheen-Carson's Roots of Nature Nurturing Repair Shampoo is a great luxurious and purifying shampoo for the hair and scalp.

Remember that for every level of color that you want to go lighter than your natural shade, the dryer hair tends to become. This means that when you go from darker to lighter, it's an absolute must that you deep treat your hair on a regular basis.

When you color fine hair, it will process faster because of the porosity of fine hair.

When it comes to black hair, we recommend that you absolutely see a color professional if you are planning to make a major color change in your hair.

When you are going to color your hair at home, or have been doing so, we strongly recommend that you do a patch test. Instructions on how to do this should be described in the kit instructions included with your coloring kit. Briefly, what you do is mix up a small amount of the color formula and apply it to a small section at the back of your ear or in the fold of your arm and wait 24 hours to see if there are any allergic reactions to the new formula. If all is well, you may also want to do a strand test near the root area and process as per the color kits instructions. This way you will know the timing to achieve great color results. 

DEFINING TYPES OF COLORS:
Temporary Hair Color: usually lasts from shampoo to shampoo and is deposited only on the outside of the hair.

Semi-Permanent Hair Color: usually lasts from 4-8 shampoos (depending on how they are processed) have no ammonia or peroxide. They can blend in grey and may become permanent on previously permed or colored hair. Dark and Lovely Reviving Color is the perfect choice.

Demi-Permanent Hair Color: usually does not contain ammonia and uses a low volume developer generally under 10 volume to help activate the color. They cannot lighten hair. They can stain the hair if there is a porosity issue and not be removed by shampooing especially on permed or previously colored hair depending on how they are processed.

Permanent Hair Color: changes the natural color of your hair. They can lighten or darken. They contain varying degrees of ammonia or other catalyst and are mixed with varying degrees of peroxide developers to form a color formula. They last about 4-8 weeks. These include Dark & Lovely Permanent Color and Dark and Lovely Color Confidence.

Plan for Action for Religious Leaders and Actors to Prevent Incitement to Violence that Could Lead to Atrocity Crimes

by Bach Avezdjanov @ Global Freedom of Expression

On July 14, 2017, the Plan of Action for Religious Leaders and Actors to Prevent Incitement to Violence that Could Lead to Atrocity Crimes was…

The post Plan for Action for Religious Leaders and Actors to Prevent Incitement to Violence that Could Lead to Atrocity Crimes appeared first on Global Freedom of Expression.

Editorial - It's time for Africa

by noreply@blogger.com (Stefano Barazza) @ JIPLP

It’s time for Africa 

This special issue of the Journal of Intellectual Property Law & Practice focuses on intellectual property rights in Africa. It is high time to do so. Not only because Africa, which is home to some of the fastest growing economies in the world and a rising middle-class, is ‘the next big thing’, but also, because a large part of the effective readership of the Journal is in Africa. As a matter of fact, as a mission-led university press publisher, OUP is committed to ensuring that non-profit research institutions in developing nations have access to critical research (http://www.oxfordjournals.org.ergo.glam.ac.uk/resource/image/devco_english_web.pdf). As such, the Journal is accessible free of charge or at a heavily-reduced rate in most African countries and a large fraction of the readers of our Journal are in Africa. It is also to them that we dedicate this special edition, which we hope will spark further debate on the importance of intellectual property right protection in Africa.
The ‘hot IP topics’ are slightly different in Africa than in the rest of the world, and this is of course reflected in this special issue: Africans are proud of their traditions and cultural heritage and this is why the protection of traditional knowledge transcends many aspects of intellectual property right protection, as is explained by Harriet Deacon in ‘Transboundary cooperation and regional cooperation in the protection of traditional knowledge in Kenya’ and Lee-Ann Tong in ‘Aligning the South African intellectual property system with traditional knowledge protection’.
Feeding the exponentially growing African population with quality food products is an ongoing concern and so is the coexistence of plant variety rights and African farming, as outlined by Susan Isiko Štrba in ‘Legal and institutional considerations for plant variety protection and food security in African development agendas: what solutions from WIPO?’.
Fostering innovation is key for African economies, which are undergoing major transformations, as is reflected in the article ‘Do patents and utility model certificates encourage innovation in Kenya?’ by Isaac M. Rutenberg and Jacquelene Mwangi.
In Africa, like in the rest of the world, whenever reforms are undertaken there is a risk of things going wrong, as described by Marcus Riby-Smith in his contribution ‘South African copyright law - the good, the bad and the Copyright Amendment Bill’.
The conflict between adwords and brands exists not only in Europe as shown by Likonelo Magagula and Sophie Lees in ‘A comparative analysis of the approach to advertising keywords in South African and English trade mark law’.
Counterfeit and pirated goods flood into Africa, like no other continent: fake vaccines, medicines, condoms, food products, and power tools threaten the health and safety of the African consumer and it is paramount that right-holders fight this plague. However, in some cases intellectual property right enforcement can have surprising side-effects, as described by Aurelia J. Schultz in ‘Africa's been raided enough: Collateral damage to intellectual property systems and alternatives to obtain value’.
There was huge enthusiasm on the side of the authors to participate in this special issue and we sincerely hope that the readers are as enthusiastic as we were when putting this issue together.

Hate Speech & Incitement to Violence Against LGBTI Persons

by Bach Avezdjanov @ Global Freedom of Expression

Published in 2015, the report “Hate Speech and Incitement to Violence Against LGBTI Persons in the Americas”  provides an overview of the Inter-American legal framework…

The post Hate Speech & Incitement to Violence Against LGBTI Persons appeared first on Global Freedom of Expression.

Products from the New Target K-Beauty Collection

by Nicki Zevola Benvenuti @ FutureDerm

K-Beauty is one of the fastest growing categories in premium skincare at Target, allowing consumers to incorporate Korean skincare products into their routines for low prices. Below I’m covering the latest products from the new Target K-Beauty Collection, many of which contain exciting ingredients and innovative technologies developed to target specific areas or receptors within Read more »

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Our latest issue - what's in it?

by noreply@blogger.com (Stefano Barazza) @ JIPLP

Here is the table of contents of our April issue. Editorial Board member Carina Gommers (Hoyng Rokh Monegier) penned a delightfully interesting editorial on effective remedies to tackle counterfeiting of pharmaceutical products, taking into account the recent EUIPO's study on "The economic cost of IPR infringement in the Pharmaceutical Industry" and the MEDICRIME Convention of the Council of Europe. We will post Carina's editorial after the weekend.

Our April issue also features a wide selection of Current Intelligence notes, including comments on trade mark rulings from Turkey and Canada. To whet your trade mark appetite, we also have a trio of CIs on recent EU rulings (including the General Court's judgments on the KitKat bar shape and the Guess logo) and a comprehensive EU trade mark round-up drafted by Arnaud Folliard-Monguiral and David Rogers, as well as an original and very interesting analysis of the protection of country names by Natalie GS Corthésy. Rob Kunstadt discusses patent jury trials in the US in light of the decision of the Court of Appeals for the Federal Circuit in MCM v HP (and of the recent decision of the Supreme Court to deny certiorari in this case). Rajam Neethu examines the issues surrounding biobanking and big genomic data, moving from the CoE's Recommendation CM/Rec (2016) 6 on research on biological materials of human origin and the recent World Medical Association's Declaration of Taipei on Ethical Considerations regarding Health Databases and Biobanks. Caterina Sganga provides an in depth critical analysis of the judgment of the CJEU in Soulier and Doke and evaluates its significance for EU copyright law. Our exchange with GRUR provides us with access to co-editor Eleonora Rosati's article on intermediary IP injunctions in the UK and EU context. Finally, our usual selection of book reviews looks at some of the latest publications in the field of IP.



Editorial

Current Intelligence

Articles

From GRUR Int.

IP in Review

L'oreal Serie Expert Renew C

L'oreal Serie Expert Renew C


Sleekhair.com

Hair Care Products, Cosmetics, Make-Up, Beauty Products

Editorial - Transitional UK copyright provisions

by noreply@blogger.com (Stefano Barazza) @ JIPLP

Transitional UK copyright provisions 

Nonetheless, as we increasingly operate in a digital, knowledge-based, economy and the world gets ever smaller geographically, the importance of a clear, flexible and fit-for-purpose cross-border framework for IP rights to protect creative assets is self-evident. The Digital Single Market Strategy first adopted by the EU Commission in 2015 recognizes the need to continue to support the creative sectors in protecting their rights across borders.
Given the importance of UK-produced IP creative exports, whether music (totalling £2.2 billion in 2015 according to a UK Music survey), film, TV, scientific research or technology to the UK economy, it seems likely that even in a “hard Brexit” scenario, and even if no longer directly applicable, EU law would remain central to many UK content businesses. It is sufficient to consider consumer law or data protection: the scope of the EU General Data Protection Regulation and the recent decision of the Court of Justice of the European Union in VKI v Amazon (C-191/15) make it clear that, whilst possibly not directly binding, and depending on the individual circumstances, UK suppliers would likely need to comply with EU data protection rules in order to process and transfer personal data within the EU.
In a similar fashion, the substantive changes to copyright as proposed by the EU Commission under the recently published proposals on the “modernisation of copyright” (Cross-border access (Jan 2016); Marrakesh and Country of Origin (Sept 2016)) will likely continue to have a significant effect, whatever the technical legal relevance on UK law. For instance, if the draft Regulation relating to the online transmissions and retransmissions of TV and radio programmes is eventually adopted in its current form, notwithstanding that the UK might not be bound by it, it seems unlikely that the UK would take a divergent approach to the principle of “country of origin”. This is given not only the longstanding precedent established by the Satellite and Cable Directive, but also the practical difficulties and costs that licensors would arguably face in persuading broadcasters and programme makers in other EU Member States that “top up” licences would be required for UK reception of ancillary digital transmissions.
Accordingly, the unfolding of the EU Digital Single Market programme should continue to be of as much interest to UK-based practitioners, as to the rest of Europe, and it is important that the UK remains active in the relevant EU debates. Whilst much in the recent proposals is to be welcomed from a UK-centric perspective, naturally, different stakeholders would have concerns over some of the provisions. There is likely to be more released in the coming months, including the legislative of the review of the Enforcement Directive. It is to be hoped that, in addition to other measures, the Commission would in particular take the opportunity to provide for the availability of expedited cross-border injunctions for IP infringements and that the UK would ultimately be able to participate in any such solutions, one way or another. The UK has to date often led the way in acting in the area of enforcement, particularly online, through successful initiatives such as “Follow the Money”. A more effective expedited pan-European framework for enforcement would benefit and hopefully reduce costs for all concerned.
In light of the substantive reverberations that are to be felt in the UK as a result of the changes made to copyright and the wider IP framework - whether enforcement, a new right in press publications, mandatory exceptions or data protection - it is to be hoped that the UK would continue to embrace the opportunities coming from the EU. Our ongoing participation or “doing our bit” in the EU debate is essential for a smooth transition to whatever formal structural relationship lies ahead for the UK and its friends in the EU and beyond.

Interphase-C - Omvorming/permanent - Loreal - Merken - Kapperskorting.com

Interphase-C - Omvorming/permanent - Loreal - Merken - Kapperskorting.com


Kapperskorting.com

De Wella L'Oréal Interphase-C lijn is bedoeld voor het creëren van regelmatige en volumineuze krullen en geeft het haar versteviging vanaf de haarwortel.

Your Hair Style Insperation

by @ The Glamour Shop: Latest News

There's no excuse for a bad hair day! Whatever your hair colour, length, cut or texture, we've got the perfect style for you. 

  • Add waves to long glossy locks, and keep them off your face with a simple halo braid. Our Best Sold Product for Wavey Hair is Goldwell Style Sign Crystal Turn Gel Wax.
  • Gently back-comb your hair at the roots and sweep back the front section, adding soft waves to soften the look. Loréal Play Ball Pearl Whip a vanilla-pineapple fragranced styling product which helps you get amazing anti-frizz effect for ultimate control. Play Ball Pearl Whip is a rich cream that offers soft definition and a pearly finish.
  • Give pigtails a sophisticated twist with two twisted halo braids and an ultra-slick finish. Sofn’free Herbal Oil Moisturiser provides intense moisture to help reduce breakage and provide a healthy sheen.
  • Give Rapunzel a run for her money with ultra-long glossy waves. This has the most gorgeous hairever: if you're blessed with full hair, pin two front sections back for a chic finish. KMS SilkSheen Styling Creme has a unique lightweight formula that will leave your hair with a natural, product free finish. Designed to calm frizz and add a long lasting healthy shine, this crème is perfect for creating gorgeous styles.

These round-up of the hottest new catwalk and celebrity styles, pick your favourite and follow our top tips to get the look at home.

 


Dr. Brandt Needles No More No More Baggage Eye De-Puffing Gel Review

by Nicki Zevola Benvenuti @ FutureDerm

Dr. Brandt Needles No More No More Baggage Eye De-Puffing Gel promises to be a “quick, innovative solution for aging, tired-looking eyes.” Upon application, the parent company claims “it provides a tightening effect and smooths the under-eye contour to visually reduce the appearance of under-eye bags and dark circles for an immediately brighter, well-rested look.” Read more »

The post Dr. Brandt Needles No More No More Baggage Eye De-Puffing Gel Review appeared first on FutureDerm.

July issue - the perfect (IP) summer reading list!

by noreply@blogger.com (Stefano Barazza) @ JIPLP

Our July issue is now available both online and in print. It features an exciting mix of articles and Current Intelligence notes, including a useful Practice Point article on patent claim drafting, a comprehensive analysis of direct and indirect patent infringement in the EU and under the UPC framework, some interesting and thought-provoking comments on the Opinion of Advocate General Bot in Nintendo v BigBen, and much more. Here is the full table of contents:


EDITORIAL

CURRENT INTELLIGENCE

PRACTICE POINT

ARTICLES

FROM GRUR INT.

IP IN REVIEW

Kate Somerville Wrinkle Warrior Eye Gel Dark Circle Eraser Review

by Nicki Zevola Benvenuti @ FutureDerm

Kate Somerville Wrinkle Warrior Eye Gel Dark Circle Eraser promises to visibly reduce the appearance of dark circles, crow’s feet, and undereye puffiness. Kate Somerville Wrinkle Warrior Eye Gel Dark Circle Eraser also promises to increase skin’s firmness and elasticity, and plump and hydrate, in the delicate undereye area. This last point is where I start Read more »

The post Kate Somerville Wrinkle Warrior Eye Gel Dark Circle Eraser Review appeared first on FutureDerm.

How to look radiant on a dull day

by @ The Glamour Shop: Latest News

It's never been easier to feel gorgeous, whatever the weather...

Have you ever looked out of the window on a cloudy day and felt like you had a complexion to match the dreary atmosphere? A dull day doesn't meet you need to look and feel dull as well; it's actually pretty easy to put a little spring in your step and feel on top of the world – even if spring itself isn’t quite here yet.

So what are the best ways to go about looking radiant on a dull day? Goodness, I thought you'd never ask! I have five oh-so simple tips to trick yourself into thinking it’s one pretty amazing day.


TIP TO LOOK RADIANT #1: a long hot bath
On a grey or cold day, it's important to lift your spirits by taking part in one of life's little luxuries. A long hot bath in the morning can assist in making you feel calmed and rejuvenated, readying you for the day - whatever it may bring. Adding nourishing Body Scrub like DHC Olive-Corn Body Scrub, with their essential oils and added vitamin E can make your skin feel all sorts of supple.

TIP TO LOOK RADIANT #2: a touch of sun
Nothing can make you feel as average on a day of the same description as a total lack of summer glow. If a fake tan feels too obvious in the colder weather, opt for a nourishing body moisturiser with a touch of self tan. This way you can build up the golden hue until you're happy with your glow. We love Palmer's Natural Bronze Tan Lotion for an all-over subtle tan.

TIP TO LOOK RADIANT #3: a blow-dry
There's nothing like a little rain to properly mess up any 'do you were thinking of trying with your locks. If you're feeling a little less than radiant, why not pop down to your nearest salon and treat yourself to a professional blow dry with styling product like KMS FreeShape Quick Blow Dry to ensure no weather messes with your mop?

TIP TO LOOK RADIANT #4: your favourite frock
On a day when you're not feeling your most delectable, do away with your normal day-to-day ensembles and whip out your favourite frock. You know, the one that nips in at all the right places and makes you feel like a superstar? It's a sure fire way to feel your very best, whatever the weather.

TIP TO LOOK RADIANT #5: a brilliant bold hue
Ever wake up, look in the mirror and spy a rather beige, colourless complexion staring back at you? Yeah, it's enough to make you want to hide inside all day, right? Well you'll be happy to know that you're just a swipe away from unleashing your inner goddess. Simply choose a bright red lipstick, or a bold eyeshadow and be ready to receive compliments by the bucketful all day long. We recommend DHC Moisture Care Liquid Lipcolor in Barbados Blush and award winning DHC Eyelash Tonic.

L’Oréal "Drops" World Cup Teenage Model After Hunting Picture Controversy

L’Oréal "Drops" World Cup Teenage Model After Hunting Picture Controversy


BuzzFeed

The 17-year-old's Facebook account also appears to have been taken down.

KMS Molding Paste for Natural Style Hair

by @ The Glamour Shop: Latest News

The KMS Hair Play Molding Paste gives natural-looking soft hold and definition to my thick, coarse hair. On dry hair use it to control my bangs and any frizzy or unruly bits, and add light texture. Very good product for my fine hair. Molds it into a nice shape, controls flyaways and gives a great piece-y look to layers. it's as good as Pureology texture twist.

If you are funky hair lover along with the paste up spray, use this on hair when your hair is still damp. both products will give you punky and funky look straightway. KMS molding Paste will keeps everything in place while not being greasy/sticky and is extremely pliable, and also this KMS Paste has a faint lemony scent which doesn't really linger. no problems with washing this paste out too.

This is an amazing paste for short hair to give it texture and definition and amazing control. Perfect for men too, because it is quite matte. A lot of guys don't like to look like they have stuff in their hair. Use it in dry hair after you have styled it, to finish it, separating and defining little pieces. ( you could use it in wet hair and air dry just for added texture) It is quite potent. Use very very little or it will look white and gunky. if used correctly, it will not get greasy and weigh the hair down. It has a good strong holding ability, but stays somewhat pliable. This is good even for really fine hair.

This KMS Hair Product is Combined with S-Factor Smoothing Lusterizer, your hair be never looked better! Now Available at The Glamour Shop Only for £13.99

Toolkit on freedom of expression, access to information and safety of journalists for judicial schools

by Hawley Johnson @ Global Freedom of Expression

The United Nations Educational, Scientific and Cultural Organization (UNESCO) and the Ibero-American Network of Judicial Schools (RIAEJ), jointly with outstanding international partners, are pleased to…

The post Toolkit on freedom of expression, access to information and safety of journalists for judicial schools appeared first on Global Freedom of Expression.

L'oreal Serie Expert Lipidium Primer Repair Treatment 15 X 12ml

L'oreal Serie Expert Lipidium Primer Repair Treatment 15 X 12ml


The Glamour Shop

Renew C pre-shampoo treatment permeates to the core of hair fiber for sleeker stronger & more lustrous hair. Now available at The Glamour Shop

Editorial - The 125th anniversary of the German utility model – A reason to celebrate?

by noreply@blogger.com (Stefano Barazza) @ JIPLP

For our current issue, Editorial Board member Karsten Königer (Harmsen Utescher, Hamburg) has penned a very interesting editorial on utility models in Germany, first introduced in 1891. Karsten calls for a reflection on the role of utility models, highlighting several reasons (e.g. requirements for protection, costs, etc.) that explain why "the German utility model does not meet the apparent expectations of the German legislator."


The 125th anniversary of the German utility model – A reason to celebrate? 

Karsten Königer

On 1 October 1891, the first German Act on Utility Models (“Gebrauchsmuster”) came into force – creating a new industrial property right for technical inventions, in addition to the patent. 
125 years later, there are about 85,000 registered German utility models in force (the maximum term of protection is ten years). Can we be congratulated? Have the legislator’s expectations been met? 
In 1985, in a proposal for a new version of the Act, which was later enacted, the German government gave the following reasons for the utility model: ‘The utility model is mainly [designed] to quickly and inexpensively make available a manageable industrial property right for sole inventors and small and medium-sized enterprises for their everyday life inventions.’ The term ‘everyday life inventions’ was apparently used to describe inventions that involve only a small inventive step. 
The German utility model can indeed be obtained quickly. It is registered without examination within a few months after application and gives rise to injunctive relief. It can also be created by ‘branching off’ from a patent application or from a patent under opposition. In this respect, the utility model meets the expectations of the German legislator. But what about the other goals? 
In the year 2006, the German Federal Court of Justice held that regarding the requirement of inventive step in utility model law the same principles apply as in patent law. The court stated that it could not find a capable criterion for protectability that lies between non-obviousness in terms of patent law and novelty. Thus, apart from a different definition of the state of the art - German utility model law provides a grace period! - only inventions that would also meet the requirements of patentability can be protected by a German utility model. Why then should an inventor file a utility model application instead of a patent application - and waive ten years of protection? 
As mentioned above, the German legislator had the idea that the utility model was, compared to the patent, manageable, i.e. easy to handle, and cheaper. In reality, however, a utility model application is as difficult as a patent application. Moreover, unlike in the patent granting procedure it is not possible to correct certain mistakes. The German utility model application has the same structure as a patent application: claims, description and possibly drawings. The scope of protection is determined by the claims as it is for patents. This structure requires that a utility model application is written by a person who is as competent as an educated patent agent. The idea that a utility model application needs less care and competence than a patent application can have fatal consequences especially for sole inventors. 
As regards costs, the differences between the official fees for the application and maintenance of a utility model and a patent, respectively, are rather symbolic. The significant costs for the utility model application and the patent application are the attorney’s fees anyway. Thus, also from the financial point of view, there should be no reason for an applicant to prefer a German utility model to a German patent application. 
In sum, the German utility model does not meet the apparent expectations of the German legislator. It can be a useful additional tool for the inventor. However, these advantages for the inventor, if wanted, could be reached by small changes to patent law: re-introduction of a grace period and, if desired, injunctive relief based on a published patent application (cf. Article 67 EPC). More problematic than the limited usefulness of the German utility model is, in my view, that it also causes costs that have to be paid by competitors who are confronted with the registration of the unexamined right. Since the utility model is not examined by the Patent Office, the competitors are forced to examine the validity of the claims. These costs can be especially high for small and medium-sized companies (SMEs) which are not used to such examinations and need more advice. Thus, in many cases, SMEs are not the beneficiaries of the fact that the utility model is not examined, but the victims. 
Considering, I hesitate to say “Stay as you are” and to wish for another 125 years. 
© The Author(s) 2016. Published by Oxford University Press. All rights reserved.

Kiehl’s Midnight Recovery Eye Cream

by Nicki Zevola Benvenuti @ FutureDerm

. is a play to extend a pretty sensational line of products. As I’ve discussed in past reviews, I’m not a fan of their because I feel it does little more than hydrate, but I am a huge fan of their Kiehl’s Midnight Recovery Cleanser. Insofar as goes, it is unfortunately more in the category Read more »

The post Kiehl’s Midnight Recovery Eye Cream appeared first on FutureDerm.

The Authors' Take - Proposed Press Publishers’ Right: A Workable Solution?

by noreply@blogger.com (Eleonora Rosati) @ JIPLP

Proposed press publishers’ right: a workable solution?

University of Helsinki, Faculty of Law

Quality journalism is more important than ever. By the same token, few would oppose legal and economic conditions amenable to producing press content of high journalistic standards. Achieving those conditions is also what the European Commission’s proposal on Copyright in a Digital Single Market seeks by proposing the creation of a related press publishers’ right.
The proposal raises various issues. Many of these issues have been elegantly addressed by other scholars (e.g. C Geiger, O Bulayenko and G Frosio, [2017] EIPR 202) and are currently under discussion by the EU legislator. In this blogpost, we highlight some issues concerning the proposed related right that our article [which will be published as Advance Access here in a few weeks' time, and will be included in one of the next issues of JIPLP] discusses more extensively. Most of these issues stem from the proposal’s definition of protected subject-matter and exclusive rights in such a way that almost any reuse of news content might appear infringing. To illustrate: reproducing and making available to the public even minimal excerpts that would not qualify as original or as the result of significant investment would be infringing under the proposal.
Arguably, the right as proposed could help press publishers protect and license news content in which they have invested. At the same time, however, over-extensive protection may unnecessarily threaten the various legitimate interests served by other activities in which news content is discussed or reused. Not all these activities threaten the incentives of press publishers. Moreover, it is unclear if the related right would remedy imbalances in bargaining with online services.
Concerns about rigid, broad protection could be alleviated by better taking into account the diverse circumstances in which the proposed rights would apply. Protection could require originality, while infringements could be limited to situations where reuse of content is most problematic for press publishers’ incentives and not justified by other legitimate interests. It is also worth considering whether EU legislation allowing press publishers to rely on copyright in press publications, as proposed in the Parliament, could resolve the issues identified by the Commission satisfactorily and with fewer problems.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP).]

The Authors' Take - Stichting Brein v Jack Frederik Wullems (Filmspeler)

by noreply@blogger.com (Stefano Barazza) @ JIPLP

CJEU applies right of communication to the public to sale of multimedia players

by Karin Cederlund and Nedim Malovic

Sandart&Partners Advokatbyrå KB


In a 2017 decision (Case C‑527/15, Stichting Brein v Jack Frederik Wullems (Filmspeler)), the Court of Justice of the European Union (CJEU) held that the sale of a multimedia player, with pre-loaded hyperlinks to pirate websites, constitutes a communication to the public, within the meaning of Article 3(1) of Directive 2001/29/EC (InfoSoc Directive). The CJEU also excluded that consumers’ streaming from illegal sources would be exempted from the reproduction right under Article 5(1) of the InfoSoc Directive (temporary copies exemption).

Communication to the public

The CJEU referred to its previous case law and held that an act of communication to the public under Article 3(1) of the InfoSoc Directive requires the fulfillment of two conditions: (1) an 'act of communication' (2) directed to a 'public'. The CJEU concluded that the sale of the multimedia player at issue must be considered as a ‘communication’. The communication would encompass all persons purchasing the media player and having an internet connection. According to the CJEU, those persons could access the protected works at the same time, by streaming the works on the internet. Hence, the communication would be aimed at an indeterminate number of potential recipients and involve a large number of persons. It would be therefore a communication to a ‘public’ within the meaning of Article 3(1) of the InfoSoc Directive.

When assessing whether the works are communicated to a ‘new’ public, the CJEU recalled the presumption adopted in Case C-160/15GS Media, i.e. the user/defendant’s profit making intention. The court noted that multimedia players were supplied with a view to generate a profit, the price for the players being paid to obtain direct access to protected works available on streaming websites without the consent of the copyright holder. Hence, the provider of the device must be presumed to have knowledge of the unlicensed character of the works accessed this way.

Temporary copies exception under Article 5(1) of the InfoSoc Directive

Among the conditions of this exemption there is that the sole purpose of the act of reproduction is to enable transmission in a network between third parties by an intermediary or a lawful use of a protected work. 

According to the CJEU, the reproduction acts at issue (streaming by users of the multimedia player) would not seek to enable transmission in a network, nor the lawful use of a work. Hence, unlicensed streaming of copyright content could not fall within the scope of Article 5(1). Holding otherwise would also conflict with the three-step test in Article 5(5) of the InfoSoc Directive. 


[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP).]

Editorial - Control of content on social media

by noreply@blogger.com (Stefano Barazza) @ JIPLP

In our latest issue, Gill Grassie's editorial reflects on the applicability of the online IP infringement framework to the policing of extreme comment and hate speech by social media platforms. Which are the valuable lessons that the experience of IP enforcement online can teach to the legislator? What is their relevance in the field of hate speech? Do technological advancements provide potential solutions to this issue? Should law and policy intervene at all in this context? Gill touches upon all these questions, suggesting that the IP online experience should inform policy in this new field.

Control of content on social media - technology as judge, jury and executioner? 
Gill Grassie 
Can the web regime for IP protection teach us how best to deal with extremist and hate crime materials posted online? 
An enquiry by the UK Commons Home Affairs Committee at the end of April 2017 accused social media companies of putting “profits before safety” when it comes to extreme and hate crime materials posted online. 
MPs called for content platforms such as Facebook, YouTube, Twitter and Google to take action to actively remove content that may be considered extremist or hateful. This may not be as simple to achieve as it first appears. One of the principal challenges is deciding who should be responsible for identifying the posts that should be removed and what parameters they should employ. Also: how can this be achieved without eroding freedom of speech on the web? 
Forced removal of content by such platforms is an issue that is not unfamiliar in the IP sphere. Indeed, the speed with which extremist and hate crime material is being removed by content platforms has been contrasted with the comparatively swift action that has been taken to remove materials which infringe IP rights. However, removal in the latter case takes place usually only after the platform becomes aware of alleged infringements further to a notice by the concerned rightholder. There is no active monitoring obligation. 
Infringing content that has been made available online by users has been an issue that has plagued the holders of IP rights for a number of years and has been a constant theme in many court rooms involving third party platforms such as eBay, Napster, Facebook, Twitter and Google. As a result, there is now at least some clarity around the circumstances in which intermediaries like ISPs and platform providers are required to remove and/or may be liable for the content uploaded by users to their platform. 
When it comes to online protection of IP, the main legal framework lies in several pieces of UK legislation. These include the e-Commerce Directive Regulations (“the Regulations”). The Regulations provide certain limitations on the provider’s liability when it comes to unlawful activities taking place on its platforms. In essence, caching, hosting or acting as a mere conduit will provide a safe harbour defence. However, upon obtaining “actual knowledge” or awareness of relevant unlawful activities, the platform provider must act expeditiously to remove or disable access to the information concerned or face potential liability. The notion of “actual knowledge” stops short of the monitoring that MPs are now calling for in relation to extremist speech online. 
Can this kind of approach to IP infringement also be considered appropriate in the context of extreme comment or hate speech online? The UK Government appears not to think so. However, it could face difficult challenges if it tries to impose monitoring obligations on these platforms. Is it up to the platform itself to decide whether the content is sufficiently offensive to justify its removal? What parameters are to be applied? Can technical measures be meaningfully deployed to identify such material?
In some ways, deciding what constitutes an IP infringement might be considered less of a subjective exercise and possibly less emotive than judging what is acceptable speech online. If control is to be with the ISPs they will hold significant power to decide how and whether to remove material as extreme or not, which is arguably a wholly subjective decision. If the IP model is to be followed, and there is to be a safe harbour-type defence with actual knowledge being required, then at least there might be some scope for debate on the issue. Possibly the third parties who notified might be required to set out some objective reasons for the demanded removal. 
Can technology resolve these issues? As regards technical solutions, there are already examples of these, such as YouTube’s Content ID, an automated piece of software that scans material uploaded to the site for IP infringement by comparing it against a database of registered IPs. The next challenge may be how these types of systems can be harnessed by online platform providers to address extreme and hate crime content. Again the dilemma for policy- and law-makers may be the extent to which they are prepared to cede control over content to technology companies, which will become judge, jury and executioner. 
In addition, it is important to address the question of who should bear the cost of monitoring and removal. The vexed question of who should pay has been revisited in the context of IP blocking injunction cases. These deal with infringing content that has been made available online, where the rights holders have successfully obtained injunctions against ISPs (and not specifically social media platforms) to block access to websites where infringing content has been hosted. In Cartier International AG & Ors v British Sky Broadcasting Ltd & Ors [2016] EWCA civ 658 the Court of Appeal concluded that it is entirely reasonable to expect ISPs to pay the costs associated with implementing mechanisms to block access to sites where infringing content has been made available. In the court’s view, the relevant safe harbour immunities from infringement support and benefit the businesses of the intermediaries. Thus the cost of implementing the order could therefore be regarded as just another overhead associated with ISPs carrying on their business. While this case was limited to the much narrower context of the technical measures that needed to be put in place to comply with an IP blocking injunction - and remains the subject of an appeal to the UK Supreme Court - it may still offer some insight into the likely approach of the courts. 
As pressure mounts on social media platforms to take rapid and effective action to remove inappropriate material, stakeholders will have to consider how comfortable they are for technology companies to provide solutions to these issues. Ultimately, when should the law and policy intervene? Clearly there will be challenges here for any legislator to get the balance right and the IP experiences to date might usefully be borne in mind. 
The author would like to thank Anoop Joshi for his valuable assistance in preparing this editorial.

TATCHA Violet-C Radiance Mask Review

by Nicki Zevola Benvenuti @ FutureDerm

Face masks have been a popular trend in the skincare industry for quite some time now, and for good reason: face masks deliver powerful ingredients while also serving as a way to relax and enjoy some time for self-care. Thus, I was very excited to indulge in the , a creamy anti-aging rinse off treatment Read more »

The post TATCHA Violet-C Radiance Mask Review appeared first on FutureDerm.

L’Oréal is included on PETA's “do test” list. What does that mean?

L’Oréal is included on PETA's “do test” list. What does that mean?


PETA

L’Oreal has been included on PETA’s list of companies that test on animals for many years because it refused to adopt a company-wide policy against tests o

August issue is out!

by noreply@blogger.com (Eleonora Rosati) @ JIPLP

Our August issue is now available both online and in print. It features an exciting mix of articles and Current Intelligence notes, including useful articles on copyright in post-Brexit scenarios, an analysis of the recent decision of the Court of Justice of the European Union in Hummel v Nike, perspectives on intermediary injunctions in The Netherlands and much more. Here is the full table of contents:


EDITORIAL

Journal of Intellectual Property Law & Practice, Volume 12, Issue 8, 1 August 2017, Pages 621–622, https://doi.org/10.1093/jiplp/jpx124

CURRENT INTELLIGENCE

Journal of Intellectual Property Law & Practice, Volume 12, Issue 8, 1 August 2017, Pages 623–624, https://doi.org/10.1093/jiplp/jpx119
Journal of Intellectual Property Law & Practice, Volume 12, Issue 8, 1 August 2017, Pages 624–626, https://doi.org/10.1093/jiplp/jpx112
Journal of Intellectual Property Law & Practice, Volume 12, Issue 8, 1 August 2017, Pages 626–627, https://doi.org/10.1093/jiplp/jpx126
Journal of Intellectual Property Law & Practice, Volume 12, Issue 8, 1 August 2017, Pages 627–630, https://doi.org/10.1093/jiplp/jpx105
Journal of Intellectual Property Law & Practice, Volume 12, Issue 8, 1 August 2017, Pages 630–631, https://doi.org/10.1093/jiplp/jpx128
Journal of Intellectual Property Law & Practice, Volume 12, Issue 8, 1 August 2017, Pages 631–633, https://doi.org/10.1093/jiplp/jpx116
Journal of Intellectual Property Law & Practice, Volume 12, Issue 8, 1 August 2017, Pages 634–636, https://doi.org/10.1093/jiplp/jpx100
Journal of Intellectual Property Law & Practice, Volume 12, Issue 8, 1 August 2017, Pages 636–638, https://doi.org/10.1093/jiplp/jpx115
Journal of Intellectual Property Law & Practice, Volume 12, Issue 8, 1 August 2017, Pages 638–640, https://doi.org/10.1093/jiplp/jpx099
Journal of Intellectual Property Law & Practice, Volume 12, Issue 8, 1 August 2017, Pages 640–641, https://doi.org/10.1093/jiplp/jpx118

ARTICLES

Journal of Intellectual Property Law & Practice, Volume 12, Issue 8, 1 August 2017, Pages 642–649, https://doi.org/10.1093/jiplp/jpx087
Journal of Intellectual Property Law & Practice, Volume 12, Issue 8, 1 August 2017, Pages 650–659, https://doi.org/10.1093/jiplp/jpx063
Journal of Intellectual Property Law & Practice, Volume 12, Issue 8, 1 August 2017, Pages 660–668, https://doi.org/10.1093/jiplp/jpx069
Journal of Intellectual Property Law & Practice, Volume 12, Issue 8, 1 August 2017, Pages 669–672, https://doi.org/10.1093/jiplp/jpx066
Journal of Intellectual Property Law & Practice, Volume 12, Issue 8, 1 August 2017, Pages 673–684, https://doi.org/10.1093/jiplp/jpx067
Journal of Intellectual Property Law & Practice, Volume 12, Issue 8, 1 August 2017, Pages 685–694, https://doi.org/10.1093/jiplp/jpx114

FROM GRUR INT.

Journal of Intellectual Property Law & Practice, Volume 12, Issue 8, 1 August 2017, Pages 695–707, https://doi.org/10.1093/jiplp/jpx129

IP IN REVIEW

Journal of Intellectual Property Law & Practice, Volume 12, Issue 8, 1 August 2017, Pages 708–712, https://doi.org/10.1093/jiplp/jpx092
Journal of Intellectual Property Law & Practice, Volume 12, Issue 8, 1 August 2017, Pages 712–713, https://doi.org/10.1093/jiplp/jpx064
Journal of Intellectual Property Law & Practice, Volume 12, Issue 8, 1 August 2017, Pages 714, https://doi.org/10.1093/jiplp/jpx076

Afro Hair Shampoo and Conditioner

by @ The Glamour Shop: Latest News

Afro hair is beautiful, but it's prone to frizzing, splitting and drying out so you have to be ultra-vigilant about your hair care needs. Whether you want to achieve long and luscious locks or keep your cropped hair as glossy as possible.

Afro hair is drier than other types for a number of reasons: the follicle is curved, which means it has a twisted growth pattern, and the nourishing oil that is naturally produced in the scalp does not flow down curly strands as readily as it does along straight hair.

Afro hair is also naturally thinner in diameter and has a tendency to tangle - making it tricky to comb or style. To avoid breakage, use a wider tooth to comb your hair and wrap a silk scarf around your hair while you sleep to reduce breakage caused by friction.

 

Afro hair is thirsty, so wash it as infrequently as possible by KeraCare Shampoo to prevent drying out - stylists recommend every four to five days. Use a shampoo and conditioner specifically developed for this hair type, which will be thicker in consistency, contain less cleansing agents and be full of moisturising extracts.

"When shopping for these products, scan labels for ingredients such as jojoba, mango, which will indulge the locks with much needed nourishment," explains Abena Richardson, the 2009 Afro Hairdresser of the Year.

 

If your hair is distressed or heat frazzled, invest in a KeraCare conditioner. "These potent products contain concentrated ingredients including panthenol (vitamin B5) and naturally-derived oils like coconut or sunflower, which get to work by penetrating the hair’s cuticle to fill in areas weakened by heat or chemicals," says Richardson.

Avoid products containing mineral oil or petroleum, which don't absorb well and clog up the cutlicles - so if you use Vaseline, like your grandma used to, it's time to stop!


 

L’Oréal: Beauty for Everyone? (Community, Environment, and Development: An Undergraduate Research Journal)

L’Oréal: Beauty for Everyone? (Community, Environment, and Development: An Undergraduate Research Journal)


Community, Environment, and Development: An Undergraduate Research Journal (Penn State University)

by Emma Fivek, Ciara Hovis, Madison Miller and Kaitlyn Spangler

Palmers Stretch Mark Cream to Prevent Stretch Mark

by @ The Glamour Shop: Latest News

If your stretch marks keep appearing and growing it was sad. Some oils for stretch marks, like bio oil and massage butters were oily, Palmers cocoa butter for stretch marks absorbs great and has nice beach smell and the most important thing – prevent stretch mark big time! it makes skin soft and supple.

If you continue to use this cream for stretch marks without stopping it will prevent and diminish the appearance of stretch marks. Stretch marks will never magically go away. Some people  happen to get them from a growth spurt. Using theses cocoa butter stretch marks Cream can prevent stretch marks. Always put on Palmers Cocoa Butter Cream on your skin to give it elasticity before you exercise, other wise exercising excessively may cause stretchmarks.

First off let me say how sorry I am to all the ladies this didn't work for, Im sure there is a cream out there that can help as a nurse. Sadly it is true that whether you get stretch marks or not is dictated by your genes, but keeping your skin well moisturized does lessen the damage.

Start using this Plamers stretch mark creme when you are early in  pregnancy as if you are  worried about stretch marks, massage this Creme onto your stomach, thighs, hips & breasts morning & night all through your pregnancy. Ask your partner to give gave a massages with it & it will be a wonderful bonding experience with your partner, baby & you. If the only good thing to come out of it is how much time you spent bonding & touching your baby before she/he born. After your baby is born continue using this stretch marks cream morning & night you will get good results. My some would disliked the smell at first and will be worried about putting it on my skin as it became extremely sensitive during pregnancy. Palmer's Cream never irritated your skin and will fell beautiful on.

This Palmer s cocoa butter formula Concentrated Cream (in the tube, not the pump bottle) with thicker texture works better because it forces you to take the time and massage it into the skin (and research shows that massage does more to prevent stretch marks than any lotion or cream alone can) and also is easier for travel with.

You wont belive how much of you success will be due to the constant moisturization of the skin prior and after stretching, and all credit to the massage motion, Don’t expect miracles, but will be very pleased with how things have turned out so far for you. Don’t stop using this cream until after you fit back into my old clothes, and use this cream with any future pregnancies.

This Drugstore Black Eye Shadow Beat Out All the More Expensive Ones

This Drugstore Black Eye Shadow Beat Out All the More Expensive Ones


Allure

Even professional makeup artists agree.

The Authors' Take - Putting a Face to the Game: The Intellectual Property Implications of Using Celebrity Likenesses in Videogames

by noreply@blogger.com (Eleonora Rosati) @ JIPLP

Putting a Face to the Game: 
The Intellectual Property Implications of Using
Celebrity Likenesses in Videogames

Lecturer in Law, University of Sheffield


Technological advances have allowed videogames to depict individual likenesses with an increasing degree of fidelity. Because of this, it is now not uncommon to see videogame characters bearing the likenesses of well-known celebrities. Often, this will be the outcome of a licensing arrangement between the videogame developer and the celebrity concerned. Disputes may arise, however, where a videogame developer chooses to recreate the likeness of a celebrity in its videogame without first securing the latter’s consent.

In various US states, the outcome of these disputes would be determined under the law relating to the ‘right of publicity’, which gives individuals the right to control the commercial exploitation of their name, image, voice, and other aspects of their identity; in a number of continental European jurisdictions, similar disputes would be decided under the law relating to the individual’s ‘right of personality’. The UK, however, has no equivalent legal framework. Disputes relating to the unauthorised use of a celebrity’s likeness in a videogame will therefore have to be determined under a range of different intellectual property regimes, in particular copyright law, the law of passing off, and trade mark law.

This article [which will be published as Advance Access here in a few weeks' time, and will be included in one of the next issues of JIPLP] will show that, while the unauthorised recreation of a celebrity likeness in a videogame is unlikely to amount to copyright infringement, the position may well be very different under the law of passing off and trade mark law. This is due to the expansion of the ambit of each of these regimes over the course of the last few decades. In recent cases, the courts have become increasingly willing to recognise that the likeness of a celebrity is capable of functioning as an indicator of origin and, as a corollary, to accept the possibility that the unauthorised use of such a likeness on a product may mislead or confuse the public into believing that the product was authorised or endorsed by the celebrity concerned. While the unauthorised use of a celebrity likeness in a videogame might appear to be far removed from the paradigmatic case of passing off or trade mark infringement, therefore, the applicability of these two regimes to such a scenario can no longer be dismissed out of hand.


[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP).]

2016 Freedom of Expression Trends in Russia and Kazakhstan

by Bach Avezdjanov @ Global Freedom of Expression

This report provides an overview of  freedom of expression developments in Russia and Kazakhstan in 2016 by analyzing a select, but diverse, set of cases…

The post 2016 Freedom of Expression Trends in Russia and Kazakhstan appeared first on Global Freedom of Expression.

Current Intelligence - Lyrica decision upheld by Court of Appeal

by noreply@blogger.com (Stefano Barazza) @ JIPLP

Lyrica decision upheld by Court of Appeal

Christina Thompson and Dr Janet Strath 

Journal of Intellectual Property Law & Practice (2017) 12 (3): 158-160

The Court of Appeal dismissed Warner-Lambert’s appeal in the Lyrica/pregabalin matter, upholding Mr Justice Arnold’s finding that claims 1, 3, 4, 6, 13 and 14 of the patent at issue were insufficient and therefore invalid. The court also confirmed that Warner-Lambert’s amendment application after judgment was an abuse of process. The decision (i) provides further guidance on the infringement of Swiss-form claims, (ii) cements the role of ‘plausibility’ insufficiency in English patent revocation actions, highlighting that post-publication evidence cannot be relied upon unless the plausibility threshold has been passed and (iii) shows the importance of bringing a timely conditional application to amend patent claims. 


Legal context and facts

Warner-Lambert’s parent company, Pfizer Ltd, markets the drug pregabalin (trade name ‘Lyrica’) as a prescription-only treatment for neuropathic pain, epilepsy and generalized anxiety disorder (‘GAD’). Patent protection for pregabalin expired in 2013; however, Warner-Lambert still had a second medical use patent, with claims 1 and 3 in the Swiss form relating to the use for treatment of pain:
  1. Use of [pregabalin] or a pharmaceutically acceptable salt thereof for the preparation of a pharmaceutical composition for treating pain. 
  2. Use according to Claim 1 wherein the pain is neuropathic pain.
Mylan and Actavis commenced separate proceedings seeking revocation of Warner-Lambert’s patent, challenging its validity on the grounds of lack of inventive step and insufficiency. Actavis wished to enter the market for pregabalin and had obtained a marketing authorization for a generic version of the drug, limited to epilepsy and GAD, ie the non-patented indications (so-called ‘skinny label’). Warner-Lambert commenced patent infringement proceedings against Actavis arguing that Actavis’ cheaper generic drug (‘Lecaent’) was still likely to be dispensed for the treatment of pain, and that Actavis was liable for such sales.

On 28 May 2015, Floyd LJ upheld Arnold J’s refusal to grant interim relief to Warner-Lambert, but allowed Warner-Lambert’s appeal against the striking out of the indirect infringement claim under s 60(2) of the Patents Act 1977 (Warner-Lambert Company LLC v Actavis Group Ptc EHF [2015] EWCA Civ 556 – ‘Warner-Lambert CoA’). The judgment was particularly concerned with the correct interpretation of the word ‘for’ in Swiss-type claims, ie claims directed towards the use of a known therapeutic substance or chemical compound in the production of a medicine ‘for’ the treatment of a specific disease.

At first instance (Warner-Lambert Company LLC v Actavis Group Ptc EHF (Rev 1) [2015] EWHC 72 (Pat)), Arnold J had decided that ‘for’ meant ‘suitable and intended for’, so that the manufacturer infringes a second medical use patent only if the patentee can prove that it had been the manufacturer’s ‘subjective intent’ (in other words, his ‘wish or desire’) that the medicine would be used for the patented indication. Since Warner-Lambert had not alleged subjective intent on the part of Actavis, Arnold J had held that there was no serious question of direct infringement to be tried under s 60(1)(c). He had also dismissed the indirect infringement allegation under s 60(2), on the basis that infringement was only possible if there could be a person further down the supply chain who could do an infringing act (pharmacists do not use Lecaent to manufacture a pharmaceutical composition, as it has already been manufactured before they receive it). However, on appeal, Floyd LJ proposed a wider test, namely that it would be sufficient to prove that the manufacturer knew (including constructive knowledge) or could have reasonably foreseen the ultimate intentional use of the product for the patented indication. Adopting this interpretation, Floyd LJ found it ‘plain that Warner-Lambert has an arguable case of infringement’ under s 60(1)(c).

The actions came to trial in June and July 2015, again before Arnold J, who ruled that claim 3 encompassed both central and peripheral types of neuropathic pain, rejecting Warner-Lambert’s narrow construction of ‘neuropathic pain’ as limited to peripheral neuropathic pain (Generics (UK) Ltd (t/a Mylan) v Warner-Lambert Company LLC [2015] EWHC 2548 (Pat) – ‘the main judgment’). Accordingly, Arnold J concluded that a number of Warner-Lambert’s claims were invalid for insufficiency, including claims 1 and 3.

Mylan and Actavis, as well as Warner-Lambert, were given permission to appeal. Warner-Lambert subsequently made a conditional application to amend claim 3 to limit its scope to the treatment of ‘peripheral’ neuropathic pain ‘caused by injury or infection of peripheral sensory nerves’, which Arnold J had found plausible. In Generics (UK) Ltd (t/a Mylan) v Warner-Lambert Company LLC [2015] EWHC 3370 (Pat) (‘the abuse judgment’), Arnold J struck out Warner-Lambert’s post-trial attempt to amend claim 3—inspired by the judge’s favourable view of the validity of that invention—because it amounted to an abuse of process. The judge held that ‘if the amendment application was allowed to proceed, it could not be determined fairly without a second trial on validity’; thus, bringing the application after the patent had been found invalid amounted to unjust harassment of Mylan and Actavis.

Analysis

On appeal, Warner-Lambert argued that the claims rejected as insufficient were sustainable across their breadth, even on the construction arrived at by Arnold J. Mylan and Actavis submitted that Arnold J had been correct in his construction and rejection of claims 1, 3, 4, 6, 13 and 14 as implausible, but had erred in finding that the claims 10, 11 and 12—which were limited to specific types of peripheral neuropathic pain—were plausible. Warner-Lambert also contended that the judge had wrongly deemed its amendment application to be an abuse of process, as the patent’s validity had already been established with respect to treating peripheral neuropathic pain and a second trial on that issue would not be required. The court also had to define the proper test of infringement to be applied to Swiss-form, second medical use claims.

Infringement

Floyd LJ took the opportunity to provide further obiter guidance on the approach to Swiss-form, second medical use claims in England, in circumstances where a ‘skinny label’ is used. In doing so, he referred back to his comments in Warner-Lambert CoA and to Arnold J’s ‘forceful’ and ‘profound’ reservations. The comments were obiter as the court held that the allegedly infringing claims were invalid.

Acknowledging that there was no consistent approach to the treatment of Swiss-form claims in Europe, Floyd LJ recited his previous criticism of the position adopted in Germany (ie where the packaging of the product must indicate that the product is to be used for a patented indication and the advertising claims are ignored; see Warner-Lambert CoA at [81]) for being ‘too narrow’. He favourably referred to decisions in Spain and France, in which the courts looked at a plurality of factors, including the indications authorized and the actions of the generic manufacturer to prevent prescription for the patented indications (see Wyeth v Arafarma and Qualtec, Case 539/07, Madrid Court of Appeal; and Warner-Lambert v Sandoz, Case 15/58725, Tribunal de grande instance de Paris).

Floyd LJ then set out the test to apply when considering infringement by a manufacturer of a Swiss-form claim. The test is twofold, since the court should determine: 
  1. whether the generic manufacturer knew or could foresee that at least some of the prescriptions written generically for the drug to treat the patented indication would in fact be filled by the pharmacist with the generic product, 
  2. if so, whether the generic manufacturer has taken all reasonable steps in its power to prevent its generic product being used to treat the patented indication (see [217]). 
In relation to indirect infringement, Floyd J stated that there was ‘a danger in translating section 60(2) into a requirement for a “downstream act of manufacture”’, adding that the process of preparing the composition could continue through any packaging step performed by the manufacturer, including the labelling step performed by the pharmacist. By conceiving the act of manufacture as an ongoing process, terminating when the pharmacist dispenses the product to the patient, the generic manufacturer would be liable for infringement because it supplied the means of putting the invention into effect. However, adopting this view would also mean that the pharmacist would directly infringe the patent when applying the final label and dispensing the product, as Floyd LJ acknowledged when he agreed with the outcome in the recent Danish case of Warner-Lambert Company LLC and another v Krka d.d. and another, a decision of the Maritime and Commercial High Court dated 25 June 2015, in which pharmacists were found to have directly infringed a patent when they applied the label to the product and dispensed it, this being the final manufacturing step. This suggests that all parties in the supply chain of a generic product may be liable for both direct and indirect infringement.

Insufficiency

Mylan and Actavis contended that the animal model results reported in the patent only provided support for the treatment of those types of pain for which the animal models were a plausible model.

In relation to claim 3, it was held that ‘neuropathic pain’ included peripheral neuropathic pain as well as central neuropathic pain, but that the animal tests only supported the former. There was no other data in the patent (or the common general knowledge) from which to predict use to treat central neuropathic pain. Claim 3 was thus insufficient and invalid, notwithstanding the fact that pregabalin had subsequently been authorized for central neuropathic pain. The court confirmed that later filed evidence could not render the disclosure in the patent plausible, rescuing implausible, speculative claims.

On appeal, the generic manufacturers had sought to reverse Arnold J’s finding that it was plausible that pregabalin was effective to treat peripheral neuropathic pain. They had submitted that the patent’s disclosure of the treatment of neuropathic pain was not plausible. This challenge was rejected by the court, with Floyd LJ reiterating that the test of plausibility has a very low threshold. In this case, whilst the test results in the patent did not enable ‘a firm prediction of efficacy to be made’, they were enough to suggest to the skilled person that pregabalin might be effective for peripheral neuropathic pain. Therefore, the disclosed technical effect was plausible.

Floyd LJ also found support for plausibility in the evidence that the skilled team would be encouraged by the disclosures in the specification to test pregabalin for the treatment of peripheral neuropathic pain. However, he rejected the suggestion that the test for plausibility should be aligned to that often used for obviousness (ie if the skilled team would be encouraged to try it with an expectation of success). That would be setting the bar too high.

Abuse of process

Arnold J had refused Warner-Lambert’s conditional application to amend claim 3 to narrow its scope and overcome the insufficiency finding, on the grounds that this constituted an abuse of process. The Court of Appeal agreed. The time for Warner-Lambert to validly make such conditional application was prior to the trial of the invalidity issues.

Practical significance

Floyd LJ upheld Arnold J’s conclusions on the insufficiency, and therefore invalidity, of all the patent claims at issue, also confirming that Warner-Lambert’s late application to amend the claims amounted to an abuse of process. Accordingly, the appeals of both parties were dismissed.

The decision clarifies that if a patentee wishes to preserve a fall-back position, particularly when faced with insufficiency arguments alleging excessive claim breadth, it must make a conditional application to amend prior to the trial, or at the very latest on day one of the hearing. Making the application after the parties have argued the invalidity issues and judgment has been handed down is too late. Patentees who are involved in revocation actions should consider throughout the life of the matter how a conditional application to amend the patent fits with the overall litigation strategy, carefully deciding when the application should be made in light of Floyd LJ’s comments in this decision.


© The Author(s) 2017. Published by Oxford University Press. All rights reserved.

Shampoo (loreal)

Shampoo (loreal)


indiamart.com

C Sky International Marketing Service offering Shampoo (Loreal) in Delhi, Delhi. Get contact details, address, map on Indiamart.

Current Intelligence - The scope of protection of Lacoste's trade mark in Turkey

by noreply@blogger.com (Stefano Barazza) @ JIPLP

Turkish Court of Cassation refuses to extend scope of protection of Lacoste’s well-known trade marks


Uğur Aktekin, Güldeniz Doğan Alkan and Dilan Kayalıca

Abstract

The Turkish Court of Cassation, reversing its previous decisions on the matter, has rejected the action brought by Lacoste against registration of a ‘Crocodile’ trade mark for goods in classes 11, 20 and 21 of the Nice Agreement. The court has provided detailed criteria to assess the scope of protection of a well-known trade mark in relation to goods and services different from those for which the trade mark is registered.

Legal context and facts

The defendant, Özlider Plastik Ve Metal Sanayi Ticaret Anonim Şirketi (Özlider), filed a trade mark application for the word ‘Crocodile’ in classes 11, 20, 21 and 24 of the Nice Agreement before the second defendant, the Turkish Patent and Trademark Office (Office). Registration in class 24 was excluded ex officio by the Office due to absolute grounds for refusal not related to this case. Thus, the application was published in the Official Trademark Bulletin for classes 11, 20 and 21 only. The plaintiff, Lacoste, filed an opposition against the trade mark application. Both the opposition and a further appeal for re-examination filed by Lacoste were rejected.
Lacoste filed a court action, challenging the final decision of the Office which had rejected both their opposition against the trade mark application and the rejection request brought against the trade mark in question. Lacoste’s arguments were mainly based on likelihood of confusion, due to the similarity of the trade mark application for ‘Crocodile’ to Lacoste’s famous ‘crocodile device’ trade mark. Lacoste also argued that the registration of Özlider’s mark caused damage to the well-known status and reputation of Lacoste’s trade mark.
The 3rd Civil IP Court of Ankara dismissed the action filed by Lacoste. The court found that there was no likelihood of confusion between the trade marks in question as, despite the similarity between the trade marks (a word and a device which defines the same concept), the goods in classes 11, 20 and 21 within the scope of the contested trade mark application were not identical or similar to the goods covered by Lacoste’s trade mark registrations. It also dismissed arguments concerning the well-known status of Lacoste’s trade marks.
The decision was appealed by Lacoste before the 11th Civil Chamber of the Court of Cassation (CoC), competent to review matters concerning IP law at the appeal stage. The CoC examined the file and overturned the decision issued by the 3rd Civil IP Court of Ankara, finding that Lacoste’s trade marks were well-known trade marks and that the application for ‘Crocodile’—even if in different classes than Lacoste’s trade marks—could derive unfair benefit from or damage the distinctiveness or well-known status of Lacoste’s trade marks. The case was remanded to the court of first instance.
According to Turkish Civil Procedure Law, if a decision of a court of first instance is found inappropriate and reversed by the CoC, the highest civil court in the Turkish legal structure, the case is sent back to the same court of first instance and re-examined in light of the reversal decision. Upon re-examination, the court of first instance may decide to comply with the reversal decision, changing its initial decision, or insist on its initial judgment. In this case, the 3rd Civil IP Court of Ankara decided to insist on its initial decision, reiterating the rejection of Lacoste’s arguments.
The decision was again appealed and brought before the General Assembly of Civil Chambers (‘General Assembly’) of the CoC, which has the authority to resolve the conflict between the two decisions. The General Assembly reviewed the second decision of the 3rd Civil IP Court of Ankara and decided to reverse the decision, in parallel with the decision of the 11th Civil Chamber of the CoC.
Özlider applied for a review of the reversal decision given by General Assembly. As prescribed by civil procedure rules, the review was again examined by the General Assembly.

Analysis

The General Assembly decided to revoke its own decision, upholding the second decision of the 3rd Civil IP Court of Ankara.
The court found that there was a weak similarity between the parties’ trade marks, and that the goods covered by registration were neither identical nor similar. It added that even if a trade mark is well known, it is not possible to assume that a trade mark which seeks registration for different goods or services would automatically derive unfair benefit from the reputation of the well-known trade mark. A different conclusion, according to the court, would have conferred wider protection the well-known trade mark than legally due.
Özlider’s trade mark application concerned goods related to construction materials and kitchenware. The court noted that these goods were not similar or related to the clothing sector in which Lacoste’s trade mark is well-known. Therefore, Özlider’s trade mark application, if registered, would not derive unfair benefit from the well-known status of Lacoste’s trade mark and would not harm its reputation or distinctive character.
The well-known status of Lacoste’s crocodile device mark was beyond dispute. The main subject of the dispute was the scope of protection conferred to a well-known trademark under Article 8(4) of the Turkish Trademark Decree Law.
The decision of the General Assembly confirms the validity of the approach taken by the 3rd Civil IP Court of Ankara, which had ruled that the dissimilarity of the goods and services in question prevented an automatic finding of likelihood of confusion based solely on the well-known status of a trade mark.
Of significant relevance for this decision were the ‘DERBYTECH’ and ‘NIVA’ cases. In the former case (2013/11-656 E. 2014/427 K., decision of 2 April 2014), the court of first instance had concluded that the trade mark ‘DERBYTECH’ could not be registered for goods such as ‘saw, sanding machine, cutting machine, powered lawn-mover’ in class 07/01 and ‘machines and tools for agriculture, agriculture tools pulled by machine or engine, agriculture machines’ in class 07/07 because of the well-known status of the trademark ‘DERBY’ for ‘razor blades’ and the likelihood of association between the trade marks. On appeal, the CoC had found that the goods compared were not similar or related and therefore the conditions under Article 8(4) of the Turkish Trademark Decree Law (taking unfair advantage of, or being detrimental to, the distinctive character or reputation of the registered trade mark) had not been met.
In the latter case (2015/1633 E. 2015/8463 K., decision of 18 June 2015), the court of first instance had declared the trade mark ‘NIVA’ invalid even for goods not falling within the scope of the well-known ‘NIVEA’ trade marks. The CoC, however, had reversed this decision, highlighting the need for expert examination and a more detailed assessment of the scope of protection of well-known trade marks.

Practical significance

The decision of the General Assembly in this case, as well as the decisions discussed above, demonstrate that Turkish courts in practice do not automatically apply Article 8(4) as a ground for refusal based on well-known trade marks. Instead, they require a careful examination of the trade marks in question and a detailed assessment of the applicability of the three conditions set forth in Article 8(4). The Lacoste judgment, rendered by the highest civil court in Turkey, represents a clear and authoritative endorsement of this approach.
Although this is not the most favourable outcome for owners of well-known trade marks, the CoC’s position is in line with the wording of Article 8(4)1 of the Turkish Trademark Decree Law, as well as Article 8(5)2 of the EUTM Regulation, and it clarified the CoC’s approach to the scope of protection for well-known trade marks in relation to the registration of similar trade marks for dissimilar goods or services.






1 Article 8/4 of the Turkish Trademark Decree Law was ratified on 24 June 1995 and entered into force by publication in the Official Gazette numbered 22326 on 27 June 1995. This Decree Law was abolished by the publication of the Industrial Property Code no. 6769

2 Article 8/5 of the European Union Trade Mark Regulation No 207/2009 was published in the Official Journal of the European Union on 24 March 2009 and amended by the EU Regulation No 2015/2424 of the European Parliament and of the Council of 16 December 2015.

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