Posts

Showing posts from May, 2016

Sometimes a Euro-Defence does work: Samsung v Ericsson

Image
A Euro-defence is an answer to a claim for the infringement of an intellectual property or other right under national law based on the primacy of European Union law. In the early days of our membership of what used to be called the European Economic Community such defences were pleaded quite regularly and they often succeeded. Probably the high water mark was Magill  (Radio Telefis Eireann and Others v Commission of the European Communities[1995] 4 CMLR 718, [1995] EUECJ C-241/91P, [1995] EMLR 337, [1995] All ER (EC) 416, [1995] ECR I-743, [1995] FSR 530, [1998] Masons CLR Rep 58) where the Court of Justice held that the enforcement of broadcasters' copyrights constituted an abuse of a dominant position within the meaning of art 86 of the Treaty of Rome (now art 101 of the Treaty on the Functioning of the European Union as it has now become).

Such defences are now raised much less frequently partly because judges are astute to them but mainly because of harmonization of national …

The IP (Unjustified Threats) Bill

Image
On 19 May 2016 Lady Neville-Rolfe, the Minister for Intellectual Property, introduced the Intellectual Property (Unjustified Threats) Bill into the House of Lords. The purpose of the Bill is to reform the law relating to unjustified threats of IP infringement. The need for reform is illustrated by two comparatively recent cases:
Prince Plc v Prince Sports Group Inc. [1998] FSR 21 where the American lawyers of a well-known multinational sports goods supplier landed their client in High Court proceedings by demanding the transfer of a domain name by reference to their client's worldwide trade mark registrations in a letter before action that would have been quite unobjectionable in the United States; and Brain v Ingledew Brown Bennison and Garrett (No. 3)  [1997] FSR 51 where a firm of solicitors was sued for pre-action correspondence that would have been quite acceptable in almost any other cause of action. The reason why proceedings arose in both cases is that the Patents Act 1977