European Court defines parody

Parody has been available to European Member States as an optional defence to copyright infringement for over a decade. A recent judgment from the CJEU sets out a definition of parody and gives European businesses some guidance on how to approach it.

The court ruled that the ‘essential characteristics of parody’ are: (i) evoking an existing work while being noticeably different from it; and (ii) expressing ‘humour or mockery’. In other words, it took several years of litigation for a dictionary definition of parody to be applied by the courts! The court also clarified that where a Member State has opted in to the parody exception, that exception is harmonised across the EU.

The parody exception aims to strike a balance between freedom of expression and the rights of creators. One of the reasons this case is being litigated in the Netherlands is that the copy/parody cartoon in question uses discriminatory imagery raising the interesting question of whether the parody defence is appropriate when the author of the original work could be associated with the discriminatory use. Sadly, like many CJEU judgments, the question was left for the national court to determine. Hopefully we will get an answer when the Dutch judgment comes out.

Can a Cayman company sue a German company in the UK?

A recent case from the UK’s IP Enterprise Court (IPEC) says ‘yes’ it can but only in certain circumstances.

FND is a Cayman company. One of FND’s patents for energy saving fluorescent tube technology was assigned by an employee to a German company (B&S), apparently without the authorisation or knowledge of FND. When FND found out, they started proceedings to recover the patent (known as entitlement proceedings) at the UK’s Intellectual Property Office (IPO). At that stage, B&S disputed the IPO’s jurisdiction but on the basis that the case should have been brought before a UK court such as IPEC.

Fresh proceedings were then commenced in IPEC. The IPEC Judge reviewed the various legislation governing international jurisdiction and decided that because B&S had engaged with the IPO proceedings, they should be taken as willing for the whole decision to be determined in the UK.

The big take away is that there are all sorts of circumstances in which you can bring a case in the UK courts and neither party necessarily needs to be based here. The IPEC is a cost efficient and well run court with a specialist Judge and is already attracting IP litigants from countries such as Denmark and Taiwan. This trend is likely to continue.

Apple loses patent invalidity decision for Siri technology in China

Zhizhen Network Technology, a Chinese software developer, registered a patent for voice recognition software in July in China. In 2012, Zhizhen sued Apple for patent infringement due to Apple’s use of Siri, its popular voice recognition software. Apple counterclaimed that Zhizhen’s patent was invalid. Although the original claim for infringement was filed in 2012, it is believed that the claim was suspended (stayed) until the validity of Zhizhen’s patent had been determined.

It is now apparent that the Re-Examination Board has refused Apple’s request to revoke the patent. Although Apple has been given permission to appeal to the Intermediate Court, this Court is unlikely to overturn the Re-Examination Board’s decision, as the Board is known for more technical expertise in patent disputes. This case demonstrates the need to conduct freedom to operate searches in high value territories such as China. Apple may well have conducted such a search and still taken the risk of launching Siri in China but at least they will have gone in with open eyes.