The latter is mostly pertinent to lawyers that have a trade mark filing practice – and their clients. In this long-running saga, Sky claims that SkyKick has infringed its trade marks by offering and suppling email migration and cloud storage products and services. One of the central issues of the appeal was the question of bad faith and whether a trade mark can be invalidated on the basis that there was no genuine intention to use the mark (for all of the goods and services for which it was registered) when the application was made.
This should bring into the forefront of everyone’s minds that you should pay close attention to your trade mark specification when filing your trade mark as an overly wide and unrealistic specification could put you at risk of an application to invalidate your trade mark due to bad faith.
There has been a trend over a number of years to draft wide specifications as clients may or may not intend to expand into different areas of business. Following SkyKick, this will not fly, and people will need to be very careful and draft their specifications with a very clear and realistic business plan in mind.
The former judgment (WaterRower) deals with a very complicated area of copyright law: what is the legal test when asserting copyright in “works of artistic craftsmanship” under the Copyright Designs and Patents Act 1988? This case was a claim brought by WaterRower (owners of a water-resistant rowing machine) for infringement of copyright in the machine.
What makes this so complicated is that there is a disconnect between UK and EU copyright law. Whilst the Judge in WaterRower highlighted this disconnect, he concluded that he couldn’t reconcile it. In reality, this means that this point of law will need to be resolved by the Supreme Court, either in this case or another.
Given that WaterRower was unsuccessful in claiming that the rowing machine was a work of artistic craftsmanship, designers may be nervous about this judgment, especially considering that previous judgments have held that jeans qualified for copyright protection as well as bicycles. They were hoping for clarity but didn’t really get it. However, like a lot of IP case law, this is very fact specific. That said, close attention needs to be paid to this area of law as it is ripe for appeal (especially given it took the judge so long to hand his judgment down, which might be one of the most surprising elements of this case).
We offer a range of services and solutions to help you take a proactive approach to protecting your IP.