IP and Brexit

Clearly the big news from last month was the potential impact that Brexit will have on the various IP rights in the UK. Whilst nothing is likely to change for at least two years, the big issues will be the manner in which the UK Government will convert the UK coverage currently available for EU Trade Marks and Registered Community Designs into UK national rights, and what attempts will be made to try to keep the UK in the Unitary Patent system when it comes into force. Whilst copyright is unlikely to be affected in the short to medium term, the UK will also need to do something about replacing the Unregistered Community Design with a similar right for the UK, since most companies rely on that right rather than design registrations. Watch out for more Brexit-specific alerts.

UDRP, courts and domain names

Following a successful UDRP decision that the domain name playboy.london should be transferred to our client Playboy Enterprises, the High Court rejected an application for a declaration of non-infringement and retention of the domain name by the domain name owner. Although the UDRP rules recognised the right to commence High Court proceedings following a UDRP in certain circumstances, they did not amount to a right of appeal and the court therefore had no jurisdiction to overturn the decision of the domain name registrar.

Licences and copyright

Copyright Tribunal cases are few and far between, the most recent prior to this case being our case for the Newspaper Licensing Agency in March 2014. The Tribunal has now adjudicated on the terms of a new licence between ITV and PRS for Music. The new royalty rate will be the base rate paid in 2010 (roughly £24m) subject to an adjustment due to a change in viewing figures and the retail price index.

Music and copyright

Once a regular feature of IP litigation in the ‘90s, music disputes are having a resurgence in the last 12 months or so. The latest case involves an allegation of copying against Ed Sheeran in the US courts regarding his hit “Photograph” made by the writers of a song called “Amazing” for X-Factor winner Matt Cardle – you can compare the two songs here: https://www.youtube.com/watch?v=fKAvfGvJWGA. In the UK, George Harrison was successfully sued for “unconscious copying”, so you can infringe copyright by hearing a song and then subconsciously recalling it when writing a later song. Similar issues were tried in the US case against Led Zeppelin regarding “Stairway to Heaven” and the Spirit song “Taurus” – the jury found no infringement but an appeal has been filed.

Continuing the music cases theme, a slightly different approach is seemingly being taken involving the use of short samples from earlier records in some countries at least. A German court declined to find copyright infringement following the use of a short sample taken from the Kraftwerk song “Metall auf Metall”, saying that it would have been too impracticable to have recreated the sound from the original recording, and that the new record had no adverse commercial effect on the Kraftwerk song. Practicality of copying and the need for detrimental commercial effect on the original work have never been requirements of UK copyright law. In the US, a horn sample used in Madonna’s hit “Vogue” taken from a song called “Love Break” was found not to infringe because it was so short. In contrast, I once recovered a 5-figure sum for the use of a well-known photograph in a Hollywood feature film which was visible for just a fraction of a second, but which had copied the whole work rather than a small part of it.

Damages and breach of confidence

For a useful summary from the Court of Appeal of different ways of awarding damages for misuse of confidential information, see MVF 3 APS (formerly Vestergaard Frandsen A/S) v Bestnet Europe Ltd).

Licensees and community designs

For a case on the rights of licensees to bring infringement claims in their own name see Thomas Philipps GmbH & Co KG v Grüne Welle Vertriebs GmbH, Case C419/15, 22 June 2016.