WHO resolutions

After much negotiation, the World Health Assembly passed a resolution on 28 May. Against the backdrop of TRIPS, the resolution (see attached link from IP Watch, resolution itself not yet available) calls for flexbility and dialogue between international trade and health.

This is clearly an important first step: however, attempts by leading developing countries, (particularly India, Brazil and Venezuala) over preceding months to introduce more significant or practical wording failed or were dropped; and a call to explore the flexibilites in TRIPS (the core of the problem) were met by a request from the US for this to be done "where appropriate".

SO, same old same old? Remains to be seen.

Privilege XXX?

The complex and (to the uninitiated) arcane question of legal privilege lies at the heart of the next round of disputes about ICANN's rejection of the .xxx domain. As ever, the Register provides excellent coverage of this (and the link in turn links to the less controversial introduction of ".mobi".)

Since the end of the last year, there has been increasing concern at the impact of the US government on the decision making processes of ICANN. Those making the .xxx application sought information from the US Department of Commerce under freedom of information legislation to clarify their conduct regarding .xxx.

The DoC redacted (blanked out) parts of the documents produced - a subject and practice dear to my heart from years of experience. This is now being challenged on the basis that the documents can only be privileged if ICANN is a federal agency or under government control. Scylla and Charybdis anyone? Thought ICANN was distinct from the US government.

As the Register points out, nice symetry in this application being made at the same time as plans for the first meeting of the Internet Governance Forum. This was established at the WSIS to allow global involvement in internet governance, but no substantive change, on the basis that the US Government wasn't really in charge just now. More details of this are at http://www.theregister.co.uk/2006/05/25/igf_blueprint/

Hmmm - interesting times.

BIICL IIEL WTO Conference

I attended this conference with lots of initials earlier this week. It was an excellent and stimulating gathering of world trade experts, with small but vocal groups from the sustainable development, IP and human rights perspectives.

The most striking thing for me was that however entrenched interdisciplinary boundaries might seem, particularly when one is engrossed in a particular point of research, fields indeed do, and should, merge into one another. Long may this continue - questions of health and environment cannot be addressed without reference to economics and trade reality; likewise trade debates should not proceed apart from wider issues.

The WHO discussions continue

and who knows if they will reach IP? IP Watch is an excellent source of regular updates. We look forward to reporting on any decisions.

OECD, patents and research exemption

Thanks to IPWatch for this excellent overview of an OECD enquiry into patents, the scope of research exemptions, if any, in different countries, and the impact of this on future academic work.

This is a key area of interest for our project, particularly given the negative consequences (both economic and societal) of preventing valuable research, the growth of commercial research and testing (when, if even, would this be covered by the exemption) and the increasing narrowing of research exceptions in respect of copyright. Any "roadmap" would at least be a start.

Supreme Court (Case 05-130), eBay and injunctions

Thanks to the world's media for the deluge on this, but in particular to the IPkat for an excellent collation of views - including those of Duncan Bucknell (link provided by the IPkat).

In essence, the Supreme Court confirmed that a well established 4 step test, for considering whether to exercise the court's discretion and grant an injunction, was to apply to patent infringement.

The court rejected the more mandatory approach of the Court of Appeals of the Federal Circuit. This court had reiterated its own established approach to patent cases, with injunctions being refused only in exceptional circumstances (an approach very much based on the property rights of the patent owner). The Court of Appeals had in turn rejected a more "expansive" approach taken by the District Court, which considered factors other than the 4 step test to be relevant to granting an injunction.

So in summary, lawyers are happy because the type of test we are familiar with (reasonable criteria to be applied to each set of facts) continues; others are less so because attempts from either side of the patent divide to obtain an approach more consistent with their view of the world have failed.

Interesting to consider how a similar case would fare in UK jurisdictions: permanent injunctions/interdicts are clearly in the discretion of the courts - however, Ludlow v Williams and Microsoft v Plato saw arguments consistent with the Federal Court of Appeals approach (although dismissed on different grounds).

Fair Use and Australia?

The question of exceptions to copyright is one close to our heart, as is the impact of "free" trade agreements on IP. Interesting, therefore, to note the consideration in Australia of its copyright law, and whether "fair use" should be introduced. On this matter (and many others) can do no better than refer to Kim Weatherall's blog.

World Congress on Information Technology

Thanks to the Register for this report on WCIT.

A topic of great importance to our project is the impact of protected technology, particularly in respect of mobile telecoms, in bridging or entrenching the digital divide. Interesting, therefore, to see this report of WCIT criticising 3 competing pitches for low cost lap tops for supply to developing countries (the key criticism being on the competitive rather than collaborative approach - which of course raises the fundamental question of why companies want to, or should, supply developing markets). The report also notes, supporting comments by Africa Woman (blogged last summer) that for individuals and more remote communities, the most useful item would be a mobile phone.

Even assuming corporate will and financial resources, can infrastructure, IP and regulatory hurdles be cleared to ensure this is delivered?

From the other perspective of mobile telecoms, the conference next month in Brussels "Mobile Regulation and Competition Law" looks very interesting (http://www.mobileregs.com/). With so many challenges of 3G technology, IP and regulatory battles, there is a real need for the WCIT (and, indeed, WSIS) to ensure that the broader picture, and the extent of the digital divide, continues to the debated and addressed.

Are human rights becoming ubiquitous?

Thanks to the IPKat for details of two recent trade marks decisions, one of the CFI, one of the UK Appointed Person considering human rights.

In EUROHYPO, the CFI upheld OHIM's rejection of the CTM application on the ground that it was descriptive and not distinctive. However, in addition to arguments on these grounds, the applicant relied on article 17(2) of the EU Charter which provides only that IP "shall be protected". The apparent lack of limitation on this (as well as the present basis of the EU Charter) was considered, separately, by Professors MacCormick and MacQueen in our collection of papers in the December 2005 issue of SCRIPT-ed.

The CFI considered, without referring to some of the wider issues explored in those papers, that trade mark rights are limited, for example by the provisions of the CTM Regulation. Although I agree with this decision, perhaps on opportunity was lost for fuller exploration of the relationship between trade marks and human rights, and the lack of restriction on article 17(2). On reflection, however, perhaps a straightforward dismissal will have more impact?

Not a lot is going right just now for Sir Alex Ferguson of Manchester United. As well as "that foot", his appeal to the Appointed Person (Geoffrey Hobbs QC) in respect of the Registry decision refusing his trade mark application for ALEX FERGUSON has failed (see IPKat http://ipkitten.blogspot.com/ 3 May for link). The Registry decision, following its Manual, took the view that the use of famous names on posters and the like (but not the rest of the application) was merely descriptive of the subject matter (being "image carriers"), and not distinctive as a trade mark should be.

Sir Alex argued that the decision was in breach of his rights under the ECHR as a trade mark is a possession, in respect of which there are rights to enjoyment under Article 1, Protocol 1; the Registry practice discriminated against the rights of celebrities, as there would not be the same restriction on "ordinary" individuals registering their names (attractive, but I think they have their own problems with such applications); and that the defences in the Trade Marks Harmonisation Directive meant that some use of the name would still be available to third parties.

The arguments were rejected, on the basis that a trade mark application is not a possession within Article 1 Protocol 1 ECHR (at least pending the Budweiser ECtHR appeal); the discrimination arguments were not available without another ECHR right (such as Article 1 Protocol 1) and in any event might not be available in this circumstances; and finally the old favourite that defences shold not be taken into account in assessing registrability.

The Appointed Person wanted to make a reference to the ECJ (not on the human rights points, but the proper circumstances in which "celebrity trade marks" could be registered.) Sir Alex did not wish to pursue this and dropped the relevant parts of the appeal.

However, the human rights aspects of the appeal are being pursued, including the argument that whether a trade mark application is a "possession" is a question for English law, with the Budweiser decision only persuasive. The Appointed Person ordered that a different Appointed Person now consider this question. Could be VERY interesting: should, in these circumstances, an application be a property right to the extent that there is (limited) human rights protection; who is the best, or appropriate, arbiter of this; and, given the limits in Article 1 Protocol 1, would this make any difference?

US 301 score card

Thanks to the IPKat for details of the USTR's 301 report.

This report provides the US's view on the adequacy of IP protection provided by states other than the US. As the requirement for being on this list is that the US is not satisfied with the protection provided, rather than the state necessarily not complying with international obligation, its preparation, and possible ultimate imposition of trade sanctions, is controversial. However, as the WTO DSS has previously held that 301 because of its "discretionary" element, is not in breach of WTO obligations, 301 is likely here to stay.

Although lack of effective enforcement regimes and actions against piracy do require SOME action, reference to bilateral agreements with a long list of countries is rather concerning. This is particularly so given the possibility, as has been seen in the past, for this to require wholly permissible exception regimes to be removed from national IP legislation.

WHO, Innovation and Health - the next stage

Thanks to IP Watch for this helpful report on the present status of CIPIH follow up.

After week long discussions, with drafting being carried out "live" on a big screen (oh that brings back happy memories of practice), a draft resolution has been prepared to be considered by the World Health Assembly on 22-27 May.

Key features of the resolution are to take advantage of the flexiblity offered in TRIPS and the Doha Declaration in respect of public health (with Kenya also proposing an (undiscussed) subresolution referring to other TRIPS material regarding impact on public health, and a balance of rights and obligations); and the need to ensure that bilateral agreements do not impose TRIPS PLUS requirements on developing countries which reduce access to medicines. More generally, the appointment of an intergovernmental working group is sought. The report also has an interesting interview with Graham Dutfield on whole issue.

I'm intrigued to see what happens next. As is referred to in the report, while it is of great value that these discussions are taking place at all, are they taking place in the most appropriate forum? If the flexibilities in TRIPS are, as is the case, already there, what can the WHA do to encourage their exploration? And of what use is this given the risk of TRIPS PLUS bilaterals? That said, the fate of the TRIPS balances so far suggests that political, as well as legal, support is necessary for them to work. Might the WHA contribute to this?

Microsoft CFI overview

As so often, for up to date commentary on this one, can't do better than see the daily Register reports. But although I quite like the account of Harry Potter trailers being shown on technology that allegedly couldn't work, the most important message to be taken from the commentary has to be "wait and see". Am VERY interested to see what the CFI come up with - but I fear it might be a long wait.