IP in the News - 19 September 2014


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Summary: Our regular update on developments in the world of IP, this week featuring album artwork, high-chairs, internet service providers and orphan works.

Orphan Works and Copyright

The Government has issued three documents giving guidance on what searches someone should undertake if they wish to use a copyright work in respect of which the copyright owner is unknown (an "orphan work"). From 29 October it will be possible to apply for a licence to use an orphan work.

Internet Service Providers and Defamation

An attempt to rely on the defences available to ISPs under the E-Commerce Directive has been rejected by the ECJ, who stated that “information society services” covered an online newspaper which made its money from advertising income, and that an individual could bring an action against such a newspaper, which had knowledge of the material which had been published and monitored the content on its website (the Papasavvas case).

Furniture Designs and 3D Trade Marks

The ECJ has ruled that a trade mark for a 3-D product – in the case in issue, the well-known Tripp Trapp chair – can be declared invalid if its shape either 1) has “essential characteristics which are inherent to the generic function” of the product or 2) “gives substantial value” to it. Trade marks for 3-D objects are difficult to obtain because it will often be the case that the shape of a designer item will enhance its aesthetic appeal, which adds value to the goods and so falls foul of the second criteria. The Dutch Court will now have to apply the guidance to decide whether the shape of the Tripp Trapp chair is either essential to its function or adds value as a result of its aesthetic appeal. If either criteria apply, the owners of the rights in the Tripp Trapp chair will lose their trade mark protection, although they were successful before the Dutch Courts for copyright infringement against German company Hauck GmbH in respect of their Alpha and Beta chairs.

Many furniture designs and other 3-D products are not protected by copyright at all in the UK. The Government expects designers to protect their designs by registering them either as UK or Community registered designs, which will protect new designs for up to 25 years (but not designs more than one year old). This is another reason why the ECJ is reluctant to allow 3-D trade marks for products such as furniture – since a trade mark can be renewed indefinitely it is a good way of getting round the more limited periods of protection available from copyright and/or design rights.

[caption id="attachment_13771" align="alignnone" width="162"]Tripp Trapp Chair Tripp Trapp Chair[/caption]

[caption id="attachment_13770" align="alignnone" width="150"]Hauck Alpha Chair Hauck Alpha Chair[/caption]

Album Artwork and Copyright

Roger Dean, the well-known artist whose work adorns the cover of various classic progressive rock albums by bands such as Yes and Asia, has lost his claim against James Cameron in the US for copyright infringement for copying his famous floating island works in the film Avatar. The judge said that most of the aspects which Roger Dean relied upon from his artwork were not protectable by copyright, pointing out that the idea of a floating island appeared in Gulliver’s Travels in 1726. Make your own mind up here: ultimateclassicrock.com/roger-dean-lawsuit.

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