"Confidential" press release reports on British IP Crime

"Car boot sale? I thought the advert said 'Cat boot sale'"

Yesterday's press release from the United Kingdom Government's Department for Business, Innovation and Skills brings good-ish news for IP owners, following publication of the IP Crime Group's 67 page IP Crime Report 2010-11:

"New report shows successes of tackling intellectual property crime

More people than ever before are being successfully prosecuted for committing intellectual property crime in the UK according to a new report ....

Intellectual Property (IP) crime is the counterfeiting of trade marked goods such as clothes and the piracy of copyright material such as CDs and DVDs. The annual IP report, published by the IP Crime Group, reveals the actions that are being taken by the Intellectual Property Office (IPO) and partner agencies to fight those breaking the law. 

The report highlights that 75 per cent of all criminal copyright cases end in a positive conviction. It also reveals that 80 per cent of all IP crime cases result in guilty plea prosecutions against the defendants.[These figures are gratifying, but they will be more meaningful when we also know how many cases are not prosecuted on account of evidential problems or lack of resources with which to prosecute ] 

The report shows an increase in the sale and distribution of counterfeit and pirated goods over the internet and auction websites during the last 12 months [this is unsurprising, though the figure can be expected to fall as legal downloads become cheaper and more people indulge in file-sharing], while there has been a fall in IP crime at sites such as outdoor markets, although that still remains a problem area [quite right: the rainfall can be quite unpredictable in the British Isles, though it always rains on Sunday]. ...

The report lists goods seized and activity carried out by a range of organisations across the country. It also highlights the value of the Proceeds of Crime Act (PoCA) to fighting piracy and counterfeiting. The Act allows enforcement agencies to apply for money made from criminal activities to be confiscated. A 2009 MORI poll found that over 85 per cent of people support recovering assets from criminals [Merpel wonders whether this shows that over 14% of people are the criminals ... ]. 

In May 2010, London Borough of Enfield Trading Standards secured an £11 million confiscation order, one of the largest ever secured by a local council under PoCA. It followed the prosecution of a local man in February 2008 after 30,000 pairs of counterfeit Burberry shoes were seized [Hmm. Could this have been a bulk order for Imelda Marcos?]. The subsequent PoCA investigation revealed the defendant was also involved in a £72 million VAT Carousel fraud. [Why, Merpel wonders, would anyone in Enfield want to pay good money for counterfeit products when sadly, it seems, they can help themselves to genuine goods for free?] 

Other examples of significant cases involving IP crime include: 

• Six members of a group, who used high-tech equipment to produce 24 fake bottles of vodka [a small, pedantic voice is stifled in the act of crying out "Shouldn't that be bottles of fake vodka ...?"] a minute, were jailed for a combined total of 56 years in July 2010. More than 1.3 million litres of the illegal vodka was made in a warehouse in Hackney, East London, with an estimated value of £16 million. Confiscation proceedings are now underway. 

• A graduate from London was found guilty of breaching copyright by illegally recording films in cinemas. A mobile phone was used to record the films which were uploaded to the internet and made available to others to watch them or burn them onto illegal DVDs across the world [What a sad waste of a good mobile ...]. 

• Fake cigarette lighters [an even smaller pedantic voice is throttled before it can ask whether these are genuine lighters for use with fake cigarettes, fake lighters for use with genuine cigarettes or ... never mind!] displaying the Olympic symbol and stating London 2012 were discovered at car boot sales in Coventry. The London Olympic trade mark and the symbol of the Olympic Rings are protected trade marks, and steps are being taken to trace the supply of the lighters. Genuine London 2012 games merchandise will include a numbered holographic version of the official logo as part of the packaging or labeling. ...

Giles York, IP Crime Group chairman and Deputy Chief Constable of Sussex Police said:

“Intellectual property crime is a real and serious threat to UK companies and consumers alike. This report highlights organised criminal methodologies and the dangers posed in fake products. The recently published IP crime strategy outlines plans for tackling criminals, disrupting the supply of pirated and counterfeit goods and reducing the incentives for IP crime”".

The report is full of statistics relating to types of goods counterfeited and regional prosecution activity. The IPKat, who is no statistician, will be happy to receive guidance from his readers as to what the figures mean and whether things are as grim in Scotland as they might appear to be.  Merpel says, never mind the Report, just look at the copyright notice on the BIS press release. It reads like this:

"© Crown Copyright 2010

This communication from the NDS [News Distribution Services] is confidential and copyright. Anyone coming into unauthorised possession of it should disregard its content and erase it from their records".

Do all media releases from the government's News Distribution Services come with a "confidential" notice, asks the IPKat, or only those that contain information which is intended for publication? And why '2010', both cats wonder? Is the NDS looking back fondly to better times?

Leaking secrets here
Leaking boots here

Lock them up or make they pay?

What shall we do with them?
(photo by hmmlargeart)

The IPKat put in four 16-hour days at the recent International Trademark Association Meeting in San Francisco, but was still unable to cover more than a small amount of the programme.  He is therefore grateful to his friend and fellow blogger Aurelia J. Schultz for providing him with this note on one of the Table Topics which she attended:

"Counterfeit Goods, Civil Liability and Criminal Punishment 

Lock them up or make them pay? An international group of lunch munchers explored the various considerations in this choice at one of this year’sINTA Table Topics: The Intersection of Criminal Prosecution and Civil Trademark Enforcement, moderated by Michael J. Allan of Steptoe & Johnson LLP. In opting for one or other option, there are two main questions to ask: What do you want?  How likely are you to get it? 

What do You Want? 

In China, a successful criminal prosecution will get you the satisfaction of jail time for the defendant and a guarantee that confiscated counterfeit goods will be destroyed on 15 March, National Customs Day, when all confiscated counterfeit goods from across the country are destroyed.  It will not however, get destruction of the machinery used to produce the counterfeit goods and it will not get the trademark owner any money.  In the US, a successful criminal prosecution can include money for the trademark owner in the form of restitution, but the amount is far less than possible damages in a civil suit. 

Occasionally, it may happen that law enforcement begins a criminal investigation before the trademark owner brings a civil suit.  Things can get a little tricky when both cases wind up in the court system at the same time.  In the United States, the common procedure is for the defendant to ask for a stay of the civil proceedings until the criminal proceedings are complete.  Whether the court grants this stay can greatly affect the procedure of the civil case; thus the plaintiff needs to decide whether to argue in support of or against the stay.  A stay can make things easier for the plaintiff in the civil case because the government will do a large part of the discovery work through its investigation.  Plus, if the defendant is found guilty in the criminal case, that can be used to show liability in the civil case.  However, not having the stay can also benefit the plaintiff in the civil case by forcing the defendant to make some tough decisions.  Under the US Constitution’s Fifth Amendment, the defendant has a right not to testify in a criminal proceeding.  But, if he chooses to testify in the civil case, that right is considered waived.  In Latvia, there are no choices to make; the stay is automatic. 

How Likely are You to Get it? 

One notable consistency across the countries, if you want criminal enforcement, you’re probably going to have to do the dirty work yourself.  Governments are short on resources, money, time and personnel.  In the United States, trademark owners who want to close down counterfeit operations are more likely to get results working with the local law enforcement and prosecution offices, rather than with any of the various federal agencies.  In China, success is more likely with engagement of officers at higher government levels, most notably the Ministry of Public Security.  Local decision makers are often friends with the counterfeiters. 

Convincing law enforcement to get involved can be challenging, even if you’re able to foot the bill.  Generally, you need to show that involvement in your case benefits the greater public.  In the United States, all you have to do is find some way to persuade law enforcement that this counterfeit goods operation is linked to terrorism.  In Latvia, the sell is a little more difficult unless the counterfeit good is physically dangerous; loss of tax revenue is often the best point.  But there are also some places where the convincing is not as needed.  In Latin America, criminal prosecution is the standard for trademark infringement and counterfeit goods.  Civil cases just take way too long.

So when do you go for the money, when do you try for criminal enforcement and when do you have to choose?  Generally, you go for the money when you want money and you go for criminal enforcement when you are dealing with repeat counterfeiters and want the whole operation shut down, provided you can find a willing government partner and do some funding.  [Which  brings up a very interesting question about access to justice, but I’ll leave that for the comments section…]".

Criminalising patent infringement - "barking mad"?

The BBC website today brings us the story of Trevor Baylis - "one of Britain's best-known inventors" and inventor of the wind-up radio - and his quest "to make stealing a patent a criminal offence". "That way the state, not the individual inventor, would bear the costs of going to court" to enforce the rights in a patent, explains the BBC. Mr Baylis has already written to the business secretary Lord Mandelson and has high hopes that he will be able to help.

The BBC has dutifully asked members of the Chartered Institute of Patent Attorneys for their views. Their reactions appear to range from "...I'm not sure the criminal system is well-suited to that kind of action" to calling the potentially criminalisation of patent infringement "barking mad".

This Kat is looking forward to comments from all the patent enthusiasts out there. Any support for Mr. Baylis or has this topic been discussed too often and the answers are "clear-cat"?

BREAKING NEWS: The Pirate Bay four convicted

The IPKat has just learned from the BBC website (he thanks the many readers who are still sending him links!) that a Swedish court has sentenced the four men who masterminded The Pirate Bay -- the world's most high-profile file-sharing website -- to a year's imprisonment. The four (Frederik Neij, Gottfrid Svartholm Warg, Carl Lundstrom and Peter Sunde) have been convicted of criminal copyright infringement and must also pay 30m kronor in damages.

While the news broke officially today, the four learned of their conviction yesterday. Sunde sounded a note of irony when he commented: "It used to be only movies, now even verdicts are out before the official release". Predictably the news has been welcomed by copyright owners and the organisations representing them, while users have expressed disappointment. The four have announced their intention to appeal.

Says the IPKat, the copyright industry has to play this carefully: the step from cheeky if illegal benefactor of the file-sharing public to copyright martyr is a small one and martyrdom, once established, provides an inspiration and a rallying call for others who sympathise with the cause. Merpel muses, since the defendants were the world's leading exponents of BitTorrent file-sharing, there is no truth in the rumour that they will be released from prison in bits ...

How the 'Second German Reform Act on Victims’ Rights' may affect intellectual property rights

The German cabinet has on 18 February 2009 decided to modernise the German Code of Criminal Procedure (Strafprozessordnung, StPO) by further strengthening the rights of crime victims and crime witnesses. The so-called Second German Reform Act on Victims’ Rights (2. Opferrechtsreformgesetz) is based on a draft by the German Ministry of Justice. While strengthening victims' rights sounds like a worthwhile exercise, there are certain planned changes to the Code of Criminal Procedure that appear to have alarmed some intellectual property right owners in Germany.

The IPKat initially failed to see how strengthening the rights of crime victims could adversely affect intellectual property rights and decided to read the information provided on the German Ministry of Justice's website. Indeed, on page 50 of the draft law it states that Section 395 (2) No. 2 StPO, which allows for accessory prosecution in cases of intellectual property rights (i.e. trade mark, patents, copyright) infringements, will be abandoned. The Ministry of Justice's draft further explains that section 395 (2) No. 2 StPO had been criticised by scholars for some time because it 'was based on a dated connection between private prosecution and accessory prosecution'. Furthermore, infringements of intellectual property rights were no severe crimes of aggression and the victims of intellectual property right infringements were not violated in the 'strictly personal rights' (höchstpersönliche Rechtsgüter).

By way of background information: Section 395 StPO permits victims to join a public prosecutor in the role of an additional prosecutor (Nebenklaeger). Accessory prosecution (Nebenklage) allows victims to play an active role in criminal court proceedings. In the capacity of a private prosecutor, crime victims' lawyers have access to court files, are entitled to request the taking of evidence and may also appeal a judgment.

German news site Wirtschaftswoche reports on how the planned changes could affect the prosecution of producers of counterfeit products. The report cites brand owners, such a Guido Baumgartner of Coty, who is of the view that German state prosecutors in counterfeit and trade mark infringement cases heavily rely on the knowledge provided by accessory prosecutors, i.e. brand owners. Christoph Kannengießer of the Markenverband (trade mark owners' association) is cited a saying that the changes will mostly affect the music, movie and game industry and that the Markenverband will contact the German Ministry of Finance and other governmental bodies to alert them regarding the possible consequences of the new law. Matthias Leonardy of the GVU (society for the prosecution of copyright infringements) stresses the state prosecutors require the assistance of accessory prosecutors to gather the necessary evidence required in criminal proceedings.

The Second German Reform Act on Victims’ Rights has to be approved by the German Parliament, the Bundestag, but does not require approval from the second chamber, the Bundesrat. It is planned that the law will be passed before the Bundestag's summer holiday.

The IPKat will report on any further developments but can't help but wondering whether restricting brand owners' criminal enforcement rights sends the right signal to the producers of counterfeit goods?

The German Ministry of Justice press release can be retrieved here (in German).

Bad reproduction of logo = bad defence, rules CA

Every so often the IPKat reads an appeal against conviction for criminal trade mark infringement that he just knows is going to be hopeless. R v Boulter [2008] EWCA Crim 2375, a decision of the Court of Appeal, Criminal Division, England and Wales, was always going to be one such decision.

The police seized from Boulter a haul of 1,640 DVDs of feature films, 457 DVDs of porno and 232 CDs which bore on the packaging copies of logos of EMI and what the court described as "other companies of similar repute". Boulter, having pleaded guilty to 19 counts of unauthorised use of a trade mark contrary to the Trade Marks Act 1994 s.92(1)(c), applied for leave to appeal against his conviction, arguing that the material bearing the trade marks was of such poor quality that there was no likelihood of the public being deceived or confused. Lest you imagine that it was the quality of the reproduction of the films and music that was poor, the Kat must explain: it was the reproduction of the logos themselves that was of poor quality.

No doubt stifling their giggles and putting on suitably solemn faces, the Court (Lord JusticeToulson, Mr Justice Griffith Williams J and The Recorder of Winchester) dismissed the application. What they said, in a judgment delivered by Toulson LJ, was this:

* In the case of an alleged infringement under section 10(2) of the Trade Marks 1994 Act (similar marks/goods, similar marks/same goods or same marks/similar goods) giving rise to criminal liability under section 92, a likelihood of confusion had to be proved -- but no likelihood of confusion need be proved for liability under section 10(1) (same marks/same goods).

* This was a section 10(1) case and the trade marks, however badly they may have been copied, were identical to those registered by the various victims. Since the marks were identical and the goods in Boulter's possession in the course of his trade were identical to the goods for which those trade marks were registered, liability resulted.

* Parliament could not be taken to have intended that, where there was straightforward counterfeiting of goods and of a registered trade mark, a defendant could escape liability by showing that the quality was so poor that it would not give rise to any risk of confusion. This would provide a let-out for the counterfeiter who sold his wares as "genuine fakes".

* Boulter was seeking to raise a novel defence that, even though this was a straight counterfeiting case and there was no question of the mark being used for descriptive purposes, the fact that the quality of the counterfeiting was so poor as not to be likely to cause confusion amounted potentially to a defence. There was simply no foundation for such a defence.

The IPKat is delighted to see that the Court of Appeal has managed to reach the right result even without his assistance. Merpel's a little anxious, though. She feels that the well-advised counterfeiter will now see an advantage in making sufficient small changes in the counterfeit mark to require the court to conclude that it is merely highly similar, so that it will be necessary for the prosecution to go through the inconvenience of establishing a likelihood of confusion before they can obtain a conviction.

DoJ bans biker trade mark

The IPKat has learned from the Associated Press that the US Department of Justice has effectively seized control of the trade mark of the Mongols motorcycle gang, a picture of a Mongolian warrior wearing sunglasses. The gang appears to have been engaged in violent crime, and at the same time as the injunction banning the use of the trade mark, 79 gang members were indicted. Although the injunction banning the logo originally cracked down on distribution or sale of the logo, it now states that gang members "shall surrender for seizure all products, clothing, vehicles, motorcycles ... or other materials bearing the Mongols trademark, upon presentation of a copy of this order."

The Office of the US Attorney has said that it is drafting a protocol for such seizures, but others have cricised the moves as interfering with free speech.

The IPKat is relatively sanguine about this. He agrees that free speech is a serious consideration where a trade mark offends others. However, this mark seems more than offensive – it seems like it could incite wearers and others to commit violence. Surely this outweighs free speech? The Kat also notes that such moves might be unknown in the US, but in the UK, wearing clothing bearing the insignia of a banned group can result in an offence against anti-terrorist legislation.

Tribunal jobs, police charge file-sharer

Fancy a new (part-time) job?

The Judicial Appointments Commission has announced that it will be starting selection exercises in October for a Fee Paid Deputy Chair for the Copyright Tribunal and an Appointed Person for the Trade Marks 'Tribunal'.

File-sharing supremo charged

The Guardian reports that Alan Ellis, the founder and administrator of the 'Oink' file-sharing network has been charged with conspiracy to defraud by Cleveland (in the UK, not Ohio) Police. Four people who uploaded on to the site have been charged with copyright infringement. The site did not actually make the music available, but was instead a 'torrent tracker', which told users (who numbered 200,000) which other users had what material to download. The site was free, with revenue only coming from occasional donations.

Use Oink? Me? Never!

The IPKat is intrigued by the nature of the charge against Mr Ellis. Is this a tacit admission that secondary infringement wouldn't work here, or is there some difference in possible sentence that the IPKat isn't aware of? And who is the conspiracy between - the users of the site and Mr Ellis, or is it a bit more intimate?

First catch your copyright criminal ...

Last week the UK Intellectual Property Office posted news of a fresh consultation exercise, this time in respect of penalties for copyright infringement. As the UK-IPO's website observes:

"Currently the maximum fine that Magistrates' Courts [IPKat note: these are the entry-level criminal courts in England and Wales, largely staffed by amateurs] can award for online copyright infringement is £5,000. To reflect the commercial damage that large scale copyright infringement causes, the UK-IPO is consulting on increasing the level of fine handed down by a Magistrates’ Court to a maximum of £50,000.

This consultation takes forward Gowers Review recommendation 36, which recommended matching penalties for online and physical copyright infringement by increasing sanctions for online infringements.

Further to this in February this year "Creative Britain: New Talents for the New Economy" was published by the Departments for Culture, Media and Sports (DCMS), Business, Enterprise and Regulatory Reform (BERR), and Innovation, Universities and Skills (DIUS). It included a commitment to consult on increasing the fines available in the Magistrates’ Court from the current £5,000 limit to a maximum of £50,000 for online copyright infringement.

Scotland does not have Magistrates’ Courts; therefore the consultation considers introducing maximum levels of fines for Scottish summary courts that deal with equivalent cases in Scotland".

The interesting bit of this paper, the IPKat says, is the bit that deals with the Proceeds of Crime Act 2002 (POCA) and the mechanisms for depriving criminals of their ill-gotten gains. In the light of POCA's current provisions, does the law need any real changes at all? Sadly, says Merpel, POCA is only as good as you can make it: but you can't deprive criminals of their illegal profits until you convict them, and you can't convict them till you've got the evidence against them, and you can't pin the evidence on them till you can find them in the first place -- and the criminal copyright sector appears to be far bigger and better motivated than the bit of the criminal enforcement sector that can be allocated to deal with this issue.

PDF version of the consultation document (28 pages) here (you can also get it in Word from the link at the top of the page, if you want to cut-and-paste it ...)
The closing date for making your comments is 31 October 2008.

No profit, no offence ...

It is not every day that the IPKat receives news from Colombia, so he was particularly interested to read this little feature sent in by Jhonny Antonio Pabón Cadavid and fellow blogger Carolina Botero Cabrera.

Right: unlawful sale of CDs on the Peru-Colombia border (photo by Jhonny Pabón).

They write:

"In a landmark ruling, the Supreme Court of Colombia-- the highest criminal judicial tribunal and Court of Cassation -- ruled that, in order to establish criminal copyright infringement, it is necessary to ask whether the allegedly criminal conduct is profit-making, whether it causes effective injury and whether the intention is to cause harm on the right holder.

Judicial interpretation on copyright issues is scarce and uncertain in Colombia. In this context, the Supreme Court’s Cassation ruling 29,188 (released on 30 April 2008) has set guidelines for "the development of national jurisprudence on the nature, scope and meaning of the criminal protection of copyright".

The reasoning behind the judgment involves the three key points for the interpretation of the rules of criminal copyright:

1. Interpretation of the Berne three step test (Art. 9.2 Berne Convention, replicated by Art. 21 Decision 351 of the Andean Community) is an issue for the judge.

2. Profit-making has to be analysed as a subjective element when approaching criminal offences related to the economic rights of authorship (Colombia’s system is derived from an author's rights tradition).

3. The mere use of illegal software is not a crime.

The facts giving rise to this judgment are as follows: In 1999 Guillermo Velez offered to transfer music from vinyl to digital format on CD-Audio for a price of 5,000 Colombian pesos (approx US$3). This conduct was denounced by the Colombian Association of Producers of Phonograms (ASINCOL) ,which believed that this could be a crime against the economic rights of authorship. The computers in which Velez conducted the format transfer used unlicensed software (MS-Windows 98, MS-Office 97, MS-99 Encarta, etc). Thes judge at first and second instance convicted Velez and sentenced him to two years in prison.

In its decision the Court referred to fair use in the copyright system, and to the model of exceptions and limitations under the author's rights approach; they were explained as being a necessary balance in the IP system. The Court carried out an analysis of the criminal conduct regarding crimes against economic rights within copyright, emphasizing that the legal right protected is the economic content of those privileges. Accordingly a significant injury must be proved in order to establish that the action in question conforms is of a criminal nature.

The Court then gave two important examples that state relevant points on the development of copyright following the most recent legislative discussions in both author’s rights and copyright systems (eg Australia, New Zealand, Canada). The Court ruled out liability for format-shifting, and of music downloads from the internet, when there is a non-profit intention:

"If there are millions of songs circulating on the internet, the role of
criminal law cannot concentrate its efforts on prosecuting users that are taking advantage of this circumstance to download music that is placed at their disposal".

With this interpretation, the highest court in Colombia is in line with global concerns about a legal framework enabling development and cultural access.

“Intellectual property: consumers should not be criminalised. MEPs in the committee urges the Commission to rethink the issue of intellectual property in order to assure solutions that are equitable for both big and small actors and strike a balance between the respect of intellectual property and the access to cultural events and content. The committee underlines that on the battle against digital piracy, the solution should not be to criminalise consumers who do not intend to make profit out of their actions. Furthermore, MEPs in the committee suggest campaigns to educate consumers and raise awareness of their responsibilities" (European Parliament).

In national and regional Latin American law, adoption of the three-step test was inspired by the French legal system, while doctrine has considered it as a necessary guideline for the legislative process when including exceptions and limitations to copyright that by nature are exhaustive lists. The reasoning behind the Supreme Court’s judgment has transformed this conception: henceforth the judge must take into account that for the use to be illegal under analysis before a court

"[it] would [have to] infringe upon the normal exploitation of works" or
"unreasonably prejudice the legitimate interests of the rights holder" (see Spanish text of the court order)

This pattern of interpretation has an important background in French jurisprudence. In Mulholland Drive DVD the French Court of Cassation established that the exception for private copying in digital environments affects the normal exploitation of the work. In France, the three-step test has been used for a more restrictive interpretation of this exception, limiting the restriction to copyright. In Colombia, the three-step test has been used for the decriminalization of commercially insignificant acts.

The Court has stated that punishable conduct regarding software present on a personal computer according to the criminal law is not the "use" but the "reproduction". The court recalls the law as rendering unlawful not only reproduction but also “the transport, storage, maintenance, distribution, import, sale, offer to acquire the sale or distribution or to provide any title, of reproductions illegally obtained”; therefore the high court emphasised in the ruling that "the mere use of a computer program is not described as punishable”.

The Court says that, while the “piracy” concept is an economic issue where a large scale is necessary, the decision's scope is not the legalization of “piracy”. As is well known, groups of drug traffickers and organized crime such as the Colombian paramilitaries are involved in the profitable business of national and transnational piracy. These organizations are true mafias; they meet the profit-making criteria and might be the ones causing significant injury to copyright holders. These organizations are the real target of criminal law.

This decision points out the liberal principles of criminal law that had been vanishing in recent years from the Colombian law, with the inclusion of “abstract danger” crimes, as happens in the criminal protection regarding Technological Protection Measures (TPMs). The Supreme Court’s decision rises to defend criminal law as a last resort and can be used as precedent throughout Latin America, where the criminal system and intellectual property laws are similar. The Court's main message is that right holders should remember that civil actions for compensation of damages are the natural judicial remedy, leaving criminal law as the option of last resort because, recalling the title of the work of one of opyright's fathers, criminal law is not just for "Les Miserables"".

The IPKat thanks Jhonny and Carolina for taking the effort and write. He agrees that a US$3 offer to format-shift is not exactly the Crime of the Century and there must be a so many more important crimes for the Colombian enforcement officers to chase -- but equally he wonders whether it was the rampancy of infringement, coupled with the expense and effort of civil enforcement, that encouraged ASINCOL to press for a prosecution. Merpel adds, it's the same old question again: if I have a stall full of apples and someone comes along and steals one, my loss is small and the effort involved in doing anything about it is disproportionately large. Yet when loads of people each steal one apple, I'm left without any stock. Striking the balance between a single copyright owner and a single would-be or actual small infringer is easier than achieving the same thing against many such infringers.

Cat care in Colombia here
The great Colombian Crime That Never Was, here and here

Fake footballers' signatures; kikoi returns

Trade marks send pair to jail

The IPKat learns from the BBC that Graeme Walker and Faisal Madani, who respectively sold and supplied fake football memorabilia, have received custodial sentences for fraudulent trading, breaches of the Trade Descriptions Act and infringement of the criminal provisions of the Trade Marks Act. The pair sold fake autographs of sporting personalities including Sir Alex Ferguson, Cristiano Ronaldo, Roy Keane, Steven Gerrard and Jonny Wilkinson. However, Walker was cleared of the headline-maker: selling a signed photograph of Michael Owen.

The IPKat was curious as to what the relevant trade marks actually are. A quick look at the Trade Marks Register suggests in the names in plain script, rather than the signatures themselves. The Kat wonders whether the footballers could have got their signatures registered. Would they have been memorable enough for consumers to use them to distinguish?

KIKOY applicant skirts the issue

Readers with good medium term memories may remember an application filed to protect KIKOY as a UK trade mark noted on the IPKat just over a year ago. This was controversial because it is the phonetic equivalent of ‘kikoi’, a form of Kenyan fabric used for skirts. The Daily Nation reports that the application has failed. However, none of the exciting trade mark issues (phonetic equivalent of a descriptive word, the morality of ‘locking out’ the tranditional users from marketing goods under the name in the UK) got an airing. Instead, the application was thrown out because the applicant failed to file a TM8.

The IPKat wonders if the applicant saw the outcry and thought better of it.