Notable recent intellectual property cases : website copyright, database rights, trade mark & passing off

(1) Appeal from the High Court of Justice Chancery Division

Before: The Chancellor of the High Court Lord Justice Jackson and Lord Justice Elias Between:

Claimants/Respondents

(1) The Newspaper Licensing Agency Limited
(2) MGN Limited
(3) Associated Newspapers Limited
(4) Express Newspapers
(5) Guardian News and Media Limited
(6) Telegraph Media Group Limited
(7) Independent Print Limited

and

Defendants

(1) Meltwater Holding BV
(2) Meltwater News UK Limited
Defendants/Appellants
(3) Public Relations Consultants Association Limited
Neutral Case Citation: [2011] EWCA Civ 890

Facts

Case between newspaper publishers their representative body the Newspaper Licensing Agency (NLA) (manages IPRs of it’s members) and media monitoring organisation (MMO) Meltwater and subscriber to Meltwater News and users of their services Public Relations Consultants Association Limited (PRCA). NLA issued a Web Data Licence (WDL) to NLA’s and a Web End User License (WEUL) to (PRCA’s). The Defendants were contending that no infringement of copyright is committed by not holding a WDL and/or a WEUL.

There is copyright in newspaper headlines or website ‘scrapings’.

(2) Before: The Hon Mr Justice Arnold

Between:

Claimant

Forensic Telecommunications Services Limited

and

Defendant

(1) The Chief Constable of West Yorkshire Police
(2) Stephen Hirst
Judgment Date: 9 November 2011

Facts

The High Court gave guidance on the relationship between copyright and the sui generis database right. The case concerned tables of data containing permanent memory absolute addresses for mobile phones. Arnold J found that copyright didn’t subsist in the tables as they were not a product of the author’s own intellectual creation by reason of the selection or arrangement of their contents. The defendants had infringed the database rights in the tables and breached confidentiality, by making unauthorised use of the tables.

(3) Before: His Honour Judge Birss QC

Between:

Claimant

Dame Vivienne Westwood OBE

and

Defendant

Anthony Edward Knight
Judgment Date: 22 March 2011

Facts

Vivienne Westwood brought claims for (i) trade mark infringement; (ii) invalidity of various trade marks registered by Mr Knight which were identical or very similar to her prior marks; (iii) passing off; and (iv) copyright infringement. Vivienne Westwood was successful in all her claims. The case emphasises that anyone who takes an original mark and merely adds some minor detail to it like an insignificant prefix or suffix will not avoid liability. What is important are the dominant aspects of the mark. It is the conceptual impact on the mind of the consumer that counts. The court also commented that although some of the instances of passing off were not as strong there was a general mimicking which created a link with Vivienne Westwood.

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