Appeals and the FCC - unbundling and untangling?

Thanks to Zdnet and also the Register for comment on a US appeals court decision upholding a Federal Communications Commission decision aimed at creating a more competitive telecommunications environment - in appropriate cases. Now, large telecommunications providers must provide discounted rates to their rivals for local and long distance sevices, only if there is a lack of competition in the market and business (as opposed to domestic) users would benefit.

The question of regulation to create competition is of course vexed, and the FCC decision was itself a departure or compromise, focussing on a competition test and the business market rather than broader mandatory unbundling of network exclusivity. Adding patented infrastructure and rights to receive and express information would only make the waters murkier.....

June 2006 TRIPS Council

Thanks to IPWatch for timely and full reports on this. Two main themes, neither entirely surprising in terms of issue or outcome.

The EU has pressed for further action to be taken in respect of enforcement of IP in respect of (at least at present) counterfeiting and piracy. But while this may seem the less controversial aspect of IP enforcement from the developed country perspective, some developing countries sought at least further detail and objected to movement from the development agenda of the Doha Round. Australia and Switzerland sensibly pointed out the risk of overlap with WIPO - although, of course, this objection could be made in respect of all WTO IP activity.

The next issue was the fate of the CBD in terms of TRIPS, restrictions on patenting and disclosure of origin. Lots of discussion, not a lot of action - or consensus as to direction.

New edition of SCRIPT-ed

The June issue of our Centre's publication is now available with lots of interesting things to enjoy. Most relevant here is the text of a submission by UK IP academics to the Gowers Review of IP, and of a separate submission by the Centre - the latter, in particular, (naturally) focussing on the need to consider IP together with competition and human rights.

Anyone for tennis?

Thanks to the IPKat and his sources for an update on the long rumbling battles between Adidas (of the three stripes of course) and sports administration. Being in theory rather keen on tennis, I've been monitoring this one with interest.

The battle concerns restrictions on inclusion of manufacturer's and sponsors logos on sports attire. Measuring tapes are frequently used to establish whether the logo is too big or too small..... Complaints were made to the International Olympic Committee (by among others, Reebok and Nike) that the Adidas three stripes on clothing were often bigger than the limit and should be caught by the rules. Adidas argued that these stripes were not part of the logo and so not properly subject to the controls. Phew. But the IOC didn't agree.

Various tennis administrators (ITF, the tennis governing bodies of UK, France, Australian and the US (the Grand Slams) and Wimbledon's All England Club) in turn produced a new interpretation of their rules. This meant that size restrictions applied not only to standard manufacturer's logos, but to distinctive design elements which identified the manufacturer. This required the stripes to be removed from sponsored players' clothing to the extent that they were bigger than the logo rules. Specific reference was made to Adidas (alone) regarding interpretation of the rules.

Adidas were not happy and ultimately raised an action in the English High for breach of EC competition law, articles 81 and 82 (applicable by the English court on the basis of Regulation 1/2003). The claims were based on the bodies together applying the new interpretation of the rules in a way which discriminated against Adidas and, by doing this, abusing individual, or collective, dominant positions. Now, just in time for Wimbledon (rain, anyone?), and at the end of a grace period (just after the ongoing French Open) the High Court has delivered its initial decision.

The court considered whether the article 81 and 82 claims could survive summary judgment applications; whether they should be dismissed on the basis that they had no reasonable prospect of success. The court also considered whether, if there was no summary judgment, interlocutory injunctions should be granted prohibiting application of the new interpretation of the rules before full trial.

This is a full analysis of the basic elements of article 81 and 82, their applicability to sporting bodies, jurisdiction, and the American Cyanamid test regarding grant of interlocutory injunction. The court made particular reference to Intel v Via, and the statement that care should be taken in granting summary judgment in article 81 and 82 claims, where facts and law often mixed and the ECJ case law was constantly evolving.


The sports bodies argued their interpretation to be objectively justified and that they did not intend to apply it in a discriminatory manner - although the judge noted that even if they did not intend to discriminate against Adidas, they may have done so. Reference was made to the Diadora two stripes and the Nike sunray. The judge held that there were arguments that these design elements would be caught by the new interpretation and no evidence that the sports bodies intended to apply the rules to anyone other than Adidas. If this was so, then the article 81 and 82 defences did have a reasonable prospect of success and summary judgement should not be granted.

The interlocutory injunction analysis is detailed, and focusses on the outcome for both sides if the injunction were to be granted, the financial and reputational impact, and the extent to which these can be assessed and compensated by damages. Ultimately, the court granted the interlocutory injunction. SO the Adidas three stripes in their present form will appear at Wimbledon.

In line with previous agreement, the claim surviving, a trial will take place at the end of the year. This is after Wimbledon and the US Open, with a decision to be available before the Australian or next French Opens.

The decision continues the sporting theme in article 82 cases - see the groundbreaking At the Races at the end of last year. These cases locate direct article 82 claims in national actions - in both cases with a hint of IP issues (although they did not form part of the claim). How long before the Eurodefence involve patents, not article 82?

And more EC competition submissions

I'm quicker off the mark this time with the Commission's publication of the Comments on Green Paper on Damages actions. Once again, a full set of responses, not all of which are yet online; but those of Kenneth Campbell and the Irish Competition Authority very interesting.

So what is the relationship between private and public enforcement? What is the aim of damages? Not so much on human rights and even IP in the submissions, even by way of example - something for another day.

Article 82 review submissions

I've rather belatedly been looking at these, very helpfully set out in full on the Commission website.

As to be expected, the enquiry generated a great deal of interest and many thoughtful submissions from the legal, economic and policy angles. I found the submissions of Freshfields and Shapiro and Hayes particularly helpful, notably regarding refusal to licence IP. Both note that much fuller analysis is required than "licensing only in exceptional circumstances" building on the tests set out in the cases. The question is what......I look forward to seeing what the Commission will do.

Yet more amendments to TRIPS?

IP Watch reports on the proposal by prominent developing countries for a new amendment to article 29 TRIPS (patent applications). This will be considered at the forthcoming meeting of the TRIPS Council. It proposes disclosure in patent applications of the origin of bio resources and traditional knowledge.

IP Watch reports on a range of views, not surprisingly, between countries, and also of the possibility of more forum shop/shift debates involving the WIPO PCT, WTO and CBD (no human rights bodies, at least at this stage). If the development is to have any substance, WTO/TRIPS must be pursued - but as has been seen with essential medicines and compulsory licensing/parallel importing, this would be the start, not the end, of the road.

GikII - Ad Break

Quick plug for the GikII workshop in Edinburgh on 5 September at the Computer Law World Conference organised by Lilian Edwards. The call for papers is still open and it should be a fascinating event.

I'm hoping to present a paper "Must Worlds Collide". This will look at the differences, and parallels, between the real and virtual world(s) from a legal perspective. Although this is an increasingly developed field, I'm (naturally) hoping to contribute by adding IP, competition and human rights to the pot.