International patent filings under the Patent Cooperation Treaty (PCT) fell by 4.5% in 2009 with sharper than average declines experienced by some industrialized countries and growth in a number of East Asian countries, the WIPO announced today. Provisional data indicates that 155,900 international patent applications were filed in 2009 as compared to the nearly 164,000 applications filed in 2008.

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Not content with solving all known legal, economic, social and cultural issues arising out of intellectual property rights, the World Intellectual Property Organization (WIPO) is now tackling climate change. According to today’s press release (“WIPO Outlines How It Can Help Meet the Challenges of Climate Change”):

“WIPO Director General Francis Gurry participated on December 16, 2009 in a series of events related to international climate talks in Copenhagen and outlined how WIPO can contribute to international efforts to mitigate climate change. Mr Gurry underlined that policies that stimulate the creation and diffusion of technology are key elements in developing an effective and practical global response to the threats posed by climate change [This statement is true, but in a way so is its opposite. The same policies have stimulated the technologies that caused the threats in the first place]. He said judicious use of the intellectual property (IP) system can make a positive contribution in crafting the many and diverse technological solutions needed to attenuate the impacts of climate change [so long as those solutions aren't business methods or other excluded patentable subject matter ...].

Speaking at a side event on the theme “International Cooperation on Technology Transfer: Time for Action,” Mr. Gurry said achieving a transformation from a carbon-based society to a carbon-free one is a complex and unprecedented task that will require innovative and complementary approaches to technology policy [WIPO has already implemented a shift to a less carbon-dependent policy, by cutting Merpel off its list of Christmas card recipients].

Intellectual property (IP), he said, has an important role to play in technology policy – encouraging investment in the creation of environment-friendly technologies and their rapid dissemination are major policy objectives to which priority must be given. In both cases, the IP system, and in particular patents, are fundamentally important in that they provide a stimulus for investment in green innovation and contribute to a rapid – and global – diffusion of new technologies and knowledge [This is important: the impending death of a planet is a stimulus to survive through change, but IP is a stimulus to invest while there's still time].

Green innovation requires significant private investment. An effective patent system provides an incentive for businesses to make such an investment by making an invention a tradable good which can be licensed or assigned creating opportunities for technology partnerships and commercial return. Effective patent protection can thus spur international technology transfer from the private sector [The IPKat remains amazed at how poor, overall, has been the apparent record of the public sector in investing in the critical technologies over the years].

Mr. Gurry said the patent system provides the most comprehensive public repository of information on the latest technologies – as all patent documents are published and freely available to the public [It's good to remind people of this]. This information contains knowledge that already exists and which can support the development of new technologies or help to identify technologies that are off-patent or no longer protected and therefore freely available for use or adaptation. It is necessary to ensure that this information is widely disseminated for instance through tools and services that enhance access to up-to-date information on relevant technologies through patent information resources. …”.

The IPKat is pleased to see WIPO taking the initiative and advocating the positive uses to which IP can be directed. This is much better than waiting to defend the usual assaults from well-meaning but often ill-informed critics who view the innovation process with a degree of hindsight that makes it difficult for them to see how risky it can be to develop any new product or process.

Left: With a warm feline on his lap, this elderly gentleman can dispense with his hot-water-bottle or reduce the level of his central heating

Merpel says, no-one fully appreciates the role played by cats in reducing carbon output, by acting as animate hot-water-bottles for chilly humans.

Cats and cold weather here
Cats and warm weather here
Cool for Cats here

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Not content with solving all known legal, economic, social and cultural issues arising out of intellectual property rights, the World Intellectual Property Organization (WIPO) is now tackling climate change. According to today’s press release (“WIPO Outlines How It Can Help Meet the Challenges of Climate Change”):

“WIPO Director General Francis Gurry participated on December 16, 2009 in a series of events related to international climate talks in Copenhagen and outlined how WIPO can contribute to international efforts to mitigate climate change. Mr Gurry underlined that policies that stimulate the creation and diffusion of technology are key elements in developing an effective and practical global response to the threats posed by climate change [This statement is true, but in a way so is its opposite. The same policies have stimulated the technologies that caused the threats in the first place]. He said judicious use of the intellectual property (IP) system can make a positive contribution in crafting the many and diverse technological solutions needed to attenuate the impacts of climate change [so long as those solutions aren't business methods or other excluded patentable subject matter ...].

Speaking at a side event on the theme “International Cooperation on Technology Transfer: Time for Action,” Mr. Gurry said achieving a transformation from a carbon-based society to a carbon-free one is a complex and unprecedented task that will require innovative and complementary approaches to technology policy [WIPO has already implemented a shift to a less carbon-dependent policy, by cutting Merpel off its list of Christmas card recipients].

Intellectual property (IP), he said, has an important role to play in technology policy – encouraging investment in the creation of environment-friendly technologies and their rapid dissemination are major policy objectives to which priority must be given. In both cases, the IP system, and in particular patents, are fundamentally important in that they provide a stimulus for investment in green innovation and contribute to a rapid – and global – diffusion of new technologies and knowledge [This is important: the impending death of a planet is a stimulus to survive through change, but IP is a stimulus to invest while there's still time].

Green innovation requires significant private investment. An effective patent system provides an incentive for businesses to make such an investment by making an invention a tradable good which can be licensed or assigned creating opportunities for technology partnerships and commercial return. Effective patent protection can thus spur international technology transfer from the private sector [The IPKat remains amazed at how poor, overall, has been the apparent record of the public sector in investing in the critical technologies over the years].

Mr. Gurry said the patent system provides the most comprehensive public repository of information on the latest technologies – as all patent documents are published and freely available to the public [It's good to remind people of this]. This information contains knowledge that already exists and which can support the development of new technologies or help to identify technologies that are off-patent or no longer protected and therefore freely available for use or adaptation. It is necessary to ensure that this information is widely disseminated for instance through tools and services that enhance access to up-to-date information on relevant technologies through patent information resources. …”.

The IPKat is pleased to see WIPO taking the initiative and advocating the positive uses to which IP can be directed. This is much better than waiting to defend the usual assaults from well-meaning but often ill-informed critics who view the innovation process with a degree of hindsight that makes it difficult for them to see how risky it can be to develop any new product or process.

Left: With a warm feline on his lap, this elderly gentleman can dispense with his hot-water-bottle or reduce the level of his central heating

Merpel says, no-one fully appreciates the role played by cats in reducing carbon output, by acting as animate hot-water-bottles for chilly humans.

Cats and cold weather here
Cats and warm weather here
Cool for Cats here

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In a case of inherent interest to the IPKat, a WIPO panelist has transferred the domain name “icanhashotdog.com” to the proprietor of the trade mark I CAN HAS CHEEZBURGER?.

The proprietor of the trade mark I CAN HAS CHEEZBURGER?, claiming protection for “on-line forums for the transmission of images and messages among computer users concerning animals and humor” filed a URDP complaint against the registrant of the domain name icanhashotdog.com, used for, well, essentially the services claimed.

And won despite the fact that the complainant had registered its mark almost a year after the domain name icanhashotdog.com was registered (he did claim first use of the mark some months before the registration of the domain name). The panelist held that the complainant had met its burden of proof to demonstrate common law rights in the trade mark I CAN HAS CHEEZBURGER?:

“Relevantly, the Complainant’s evidence is essentially that:

- it used its I CAN HAS CHEEZBURGER? mark in a domain name from January 2007;
- it featured the mark on its website to which its domain name referred (as annexed to the Complaint, the Complainant’s homepage displays the mark once, in the upper left hand of the page);
- its website rapidly became popular;
- its website was the subject of a number of media articles (the Complaint attached copies of two).

The Panel considers that, on balance, this is enough to demonstrate that the Complainant had developed common law rights in its mark by the time that the domain name was registered in July 2007. The Complainant did not provide a substantial amount of evidence of common law rights, or explain the origin of its mark. The Complainant’s claim to the first use of its mark from January 2007 in its trademark registration also does not establish an evidentiary presumption to that effect. (See recently e.g. Super-Krete International, Inc. v. Concrete Solutions, Inc., WIPO Case No. D2008-1333 citing McCarthy on Trademarks and Unfair Competition § 20:28 (4th ed.)).

However the Panel considers that, in this case, the evidential burden on the Complainant to provide evidence of common law rights is relatively light. Principally, this is because its mark appears to the Panel to be an invented and arbitrary phrase, and therefore inherently distinctive in a trademark sense for the purpose of the Policy. What is “inherently distinctive” in this regard may not always be capable of a neat definition. However, it is at least to be contrasted with marks which are derived from common terms, or words which are descriptive or suggestive of certain goods and services. There is nothing in the Complainant’s mark which seems to this Panel to be descriptive or suggestive of the services which the Complainant provides. The phrase “I can has cheezburger?” appears to have no common meaning, or to be derived in whole or part from any phrase with a common meaning, including one associated with the Complainant’s services.

Since the Complainant’s mark is inherently distinctive, the Panel considers that the Complainant’s evidence is, in this case, sufficient to demonstrate that it had unregistered rights when the Respondent registered the disputed domain name. Here, the Complainant provided evidence of its close association with an inherently distinctive mark. There is no evidence in the case file that the Complainant’s mark had any other association. The Panel accordingly finds for the Complainant under the first element of the Policy.”

Since the whole “lolcat” meme originated from 4chan (no, I won’t link, but you all know how to find it), the IPKat wonders whether it is correct to monopolize the use of the phrase for commercial purposes by a single provider. And the IPKat is glad that he has been around since before January 2007 and is therefore much older – not necessarily more mature – than all the lolcats.

Case No. D2009-1003

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