The IPKat thanks lots of enthusiastic readers, of whom New York stalwart Miri Frankel was the first, for sending him links to all the news items concerning the High Court for England and Wales victory of British rock group Pink Floyd over recording company EMI. The group, famed for its concept albums in which tracks blend seamlessly (if sometimes puzzlingly) into one another, has established its right to control and indeed prohibit the manner in which EMI has been offering downloads and ringtones of single tracks.
According to the
news report in the New York Times,
“The … effect of the ruling by a judge in London on the level of royalties the band receives remained unclear, however, as that part of the judgment was held in secret, the Press Association reported. A source close to the band said those talks were “ongoing.”
Lawyers said it was the first time a royalties dispute between artists and their record companies had been held in private, after EMI successfully applied for a news blackout for reasons of “commercial confidentiality.” [While one can understand EMI's wish to keep coy about its figures, we all want to know them -- it's part of our quest for a more informed path to the development of new business models for exploiting copyright in the digital era]
The ruling is the latest blow to EMI, the smallest of the four major record companies which is seeking new funds to avoid breaching its debt covenants. An EMI spokesman was not immediately available for comment. …
Several of EMI’s top acts, including Pink Floyd and Queen, are reportedly in talks with other labels, following the exodus of other banks [A felicitous typo, says Merpel, given the immense wealth of these bands and the impoverished condition of many post-crash financial institutions], like the Rolling Stones and Radiohead, since Terra Firma took control.
Pink Floyd signed with EMI over 40 years ago and sales of its back catalogue is only outpaced by that of The Beatles. The band, whose albums include “The Dark Side of the Moon” and “The Wall,” went to court to challenge EMI’s right to unbundle the band’s records and sell individual tracks online.
The judge in the case, Andrew Morritt, accepted arguments by the group that EMI was bound by a contract forbidding it from selling records other than as complete albums without written consent. The judge said the purpose of a clause in the contract, drawn up more than a decade ago, was to “preserve the artistic integrity of the albums.”
Pink Floyd alleged that EMI had allowed online downloads from the albums and parts of tracks to be used as ringtones for mobile phones. The judge ordered EMI to pay Pink Floyd’s costs in the case, estimated at £60,000, or $90,000 [£40,000 or $60,000 according to NME.com], and refused the company permission to appeal.
Right: Pink Floyd’s members seem to have been around forever and will surely outlive their own copyright terms. Here’s a photo of them warming up for a gig in 2035.
Pink Floyd’s body of work is a coveted commodity. The band members Roger Waters, David Gilmour and Nick Mason all appeared on the 2009 Sunday Times Rich List with personal fortunes estimated at £85 million, £78 million and £50 million respectively”.
The IPKat awaits the full report of the decision in BAILII, not least because he is curious to see whether any moral rights issues were raised.
Last week the IPKat, intrigued by a reference for a ruling for a preliminary ruling of the European Court of Justice in a case he knew nothing about, Case C-4/10 Bureau National Interprofessionnel du Cognac v Oy Gust. Ranin (see earlier post here), asked readers if they could furnish him with any further information. His old friend George R. F. Souter (Lammi & Partners Oy, Helsinki) takes up the tale:
“The Finnish company Oy Gust. Ranin applied for national registration of two trade marks (illustrated here) on 19 December 2001. Both were duly registered on 1 January 2003, for products in Class 33 (the “Hienoa Konjakkia” mark for “cognac”, and the “Café Cognac” trade mar for “liqueur including cognac”).
Bureau National Interprofessionel du Cognac, an organization representing the interests of producers in Cognac, filed opposition against both registrations, objecting to the use of the word “Cognac” in the labels. The Finnish Patent & Registration Office rejected the opposition against the “Hienoa Konjakkia” label, but accepted the opposition against the “Café Cognac” label. The reason for the apparently surprising different result lies in the small legend (not easily seen in the above representations) “Product of France” in the “Hienoa Konjakkia” label which, in their opinion, removed any misconception about the origin of the product.
The losing parties promptly appealed to the Board of Appeal of the Patent & Registration Office, which approved the decision in the “Hienoa Konjakkia” case and overturned the decision in the “Café Cognac” case. The reasoning of the Board of Appeal is common to both cases. I attach a translation of the Board of Appeal’s reasoning in the “Café Cognac” case [for ease of reference, this appears as an Appendix below].
Bureau National Interprofessionel du Cognac subsequently appealed both cases to the Finnish Supreme Administrative Court, which referred the questions set out in your e-mail below to the ECJ”.
George adds that this appears to be an attempt by the Cognac producers to reserve to themselves the word “Cognac” in trade mark labels, and, as such, I find extremely interesting (not least because of the faint resonance of the old English decision in the so-called “Spanish Champagne” case [J Bollinger and Others v The Costa Brava Wine Company Limited [1961] RPC 116 et seq], the final decision in which, where the court trawled through common law decisions in various jurisdictions in search of an answer, but ignored the pragmatic, and in my view, better, decision in neighbouring Scotland in the so-called “Glenlivet” case, has vaguely annoyed me for many years). George assumes that there will be some British interests at play here.
Appendix: REASONING OF THE BOARD OF APPEAL IN THE “CAFE COGNAC” CASE
The word Cognac included in registration No. 226351 signifies a town in France and the word is known as a name for alcoholic beverages, cognacs, from this area. According to Council Regulation (EEC) No. 1576/89 Article 5 Paragraph 3, instead of distilled alcohol beverages the geographical name COGNAC can be used. However, this Regulation does not regulate the legal protection of trade mark rights in this kind of geographical name so that on the grounds of the Regulation a trade mark application, which includes such a name, should be refused or that a registered trade mark should be nullified. Nor is Council Regulation EEC No. 510/2006 mentioned in Section 14 Subsection 1 Paragraph 11 in the Trade Marks Act, which has been replaced by Council Regulation EC No. 510/2006, applicable to this case now in question. Even though Cognac in the registered mark was known as a geographical name among consumers, it doesn’t give a misleading image of the origin of the trade mark’s goods in the context of liqueurs containing cognac. Taking also into account that consumers understand the word Cognac just as an expression symbolizing the type and the quality of the goods in the whole combination of the mark in question without possibly linking it to the geographical origin, the registered trade mark cannot be considered as misleading to the public concerning the geographical origin of the goods according to the Trade Marks Act Section 14 Subsection 1 Paragraph 11.
The National Board of Patents and Registration’s decision will thus be reversed and the registration of the trade mark maintained in force.
Merpel is totally baffled by all of this and wonders why the fact that one of the labels read ‘Product of France’ caused the opposition to fail rather than strengthened it. The IPKat says, this is fun! Perhaps someone can supply him with a bottle for his World IP Day celebration …
Applicant sells KHORAN wine – KHORAN apparently is the Armenian word for ALTAR. Examiner doesn’t reject of descriptiveness but on Section 2(a) disparagement – as the Koran prohibits alcohol, Muslims will be disparaged by registration of the mark. TTABlog summarizes and links to the Board decision upholding the refusal.
A couple of initial observations: (1) the mark has allegedly been in use in the US since 2000. The record doesn’t indicate one way or another whether there has been objections to the mark. Once this case gets reported, it will be too late to obtain ’sincere’ evidence on this point; (2) this was a (rare) augmented board of 5 panelists; (3) the Board’s “there is no proper way to spell a foreign word/what about the radio” analysis is well-settled practice, however I suspect that in this instance, Muslims may interpret KHORAN WINE differently than KORAN WINE as to whether they are being targeted (I don’t have $250,000 to test this point).
Finally, the elephant in the room: within seconds of reading what this case was about, I was reminded of the Dutch cartoons, and Theo van Gogh.
BOTHELL, WASH. – Seattle Genetics Inc. announced today in a press release that the US Patent and Trademark Office has issued a patent related to its antibody-drug conjugate (ADC) technology. US Patent No. 7,659,241 covers cleavable linkers and potent auris… (source: AG IP News) – RSS and News widget on Feedzilla.com
ARLINGTON, VIRGINIA – The Consumer Electronics Association (CEA) announced in a press release that it has obtained the rights for the "World Trade Center, Las Vegas" trademark from the World Trade Centers Association. The World Trade Centers Asso… (source: AG IP News) – RSS news feeds and Widgets on Feedzilla.com
The IPKat thanks lots of enthusiastic readers, of whom New York stalwart Miri Frankel was the first, for sending him links to all the news items concerning the High Court for England and Wales victory of British rock group Pink Floyd over recording company EMI. The group, famed for its concept albums in which tracks blend seamlessly (if sometimes puzzlingly) into one another, has established its right to control and indeed prohibit the manner in which EMI has been offering downloads and ringtones of single tracks.
