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13 April 2006

Assigned rights may not include right to terminate, court rules

The Federal Court of Australia has ruled that the assignee of a trademark did not have the power to terminate a sub-licence for use of the mark. The case raises awkward questions for a licensor where the licence agreement does not confer upon the licensor a specific power to assign the benefit of the agreement without the consent of the licensee.

29 March 2006

Sky wins damages for infringing TV use in hotels

Judge Peter Kelly in the High Court has awarded Sky €128,408 in damages for copyright and trademark infringements, after the Clarion and Merrion hotels in Dublin unwittingly used a supply of Sky television channels that had not been authorized by Sky. Sky found out about the infringement after it appointed a piracy specialist based in Dublin.

17 March 2006

Transfer of mark made up of personal name not deceptive

Advocate General Colomer has stated that the transfer of ownership of a trademark consisting of the name of a person does not necessarily deceive consumers, even if the mark evokes the mistaken impression that the person took part in the design and creation of the goods for which it is used.

10 March 2006

Compromise franchise legislation enacted

The Mexican Congress has enacted amendments to the legislation applying to franchises. The amendments seek to address criticisms that franchisees are often forced to agree to unconscionable terms, but as the amendments do not include the most radical changes originally considered, few changes are effectively introduced.

06 March 2006

Mark transfer need not be in writing

In Wing Wah Food Manufactory Products Inc v China Brands Food Products Inc, the Federal Court of Canada has reiterated that the transfer of a registered or unregistered trademark does not need to be in writing in order for it to be valid. However, the decision also illustrates why it is preferable to confirm such transfers in writing.

13 December 2005

'No challenge' provision in licence unenforceable, agrees Ninth Circuit

The US Court of Appeals for the Ninth Circuit has affirmed a lower court's ruling that a 'no challenge' provision in a certification mark licensing agreement was unenforceable. In addition, the court held that the sale by the licensee of potatoes in packaging bearing the licensor's certification mark after the expiration of the licensing agreement constituted counterfeiting rather than infringement and thus statutory damages were appropriate.

06 October 2005

Preventing use of unregistered marks by ex-licensees now easier

The Delhi High Court has rendered a significant judgment protecting the interests of foreign licensors in respect of unregistered trademarks licensed to Indian entities. The court held that a licensor is not required to prove transborder reputation or satisfy the conditions of a passing off action to prevent a licensee (of an unregistered mark) from using the mark after the termination of a licence agreement.

23 September 2005

New Commercial Law will regulate franchising for first time

The Vietnamese National Assembly adopted on June 14 a new Commercial Law that will regulate franchising activities for the first time. The new statute will replace the 1997 Commercial Law when it comes into force on January 1 2006.

09 September 2005

Infamous Mustang Ranch name still up in the air

In Burgess v Gilman, the US Court of Appeals for the Ninth Circuit has affirmed a district court decision enjoining Lance Gilman from using the name Mustang Ranch for his brothel, a legendary establishment in Nevada that he purchased in 2003 from the US government. The owner of a neighbouring brothel claims that the government had abandoned the MUSTANG RANCH mark when the ranch was under its control.

05 September 2005

Right to terminate a licence cannot be assigned, rules Federal Court

In Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd, the Australian Federal Court has ruled that the right to terminate a licence does not pass to the assignee following the assignment of a trademark licence agreement as part of a business sale. The court held that the right to terminate is not an assignable chose in action, rather it is an unassignable "mere power or privilege".

20 July 2005

Reform reduces tax benefits for IP rights owners

Income derived from the use of IP rights registered abroad is now taxable in El Salvador. The tax reform also removes the right to deduct as corporate expenses any payment relating to the use of intellectual property to subsidiaries located in tax havens. In addition, the amendments impose obligations on applicants for IP rights in relation to their tax status.

19 July 2005

Ignorance of exclusive licence saves importer of counterfeit KIWI polish

In a criminal trademark infringement case, the Magistrates' Court in Kampala has acquitted the defendant, a local businessman. The court found that there was no proof beyond reasonable doubt that the defendant had knowingly infringed the KIWI mark for shoe polish. The decision was strengthened by the fact that the co-complainant had failed to register its exclusive licence to sell KIWI products in Uganda with the registrar.

27 May 2005

Supreme People's Court will no longer hear trademark licence cases

The Supreme People's Court, in response to a trademark ownership lawsuit, has announced that it will no longer hear cases involving disputes over registration of trademarks. A representative of the Supreme Court was quoted as saying that although this announcement was made with respect to a particular case, it will become a general operating procedure.

28 April 2005

Incontestable registrations fail to help US distributor

In a hard fought distributorship and licensing dispute between a Japanese manufacturer and its former exclusive US distributor of cameras, the US Court of Appeals for the Ninth Circuit has upheld a jury verdict of infringement by the distributor despite its ownership of incontestable US trademark registrations of the marks in issue.

12 April 2005

Cadbury's purple packaging complaint put on hold

In Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd, the Federal Court of Australia has upheld Cadbury's application to discontinue proceedings against Darrell Lea in relation to its use of the colour purple for, among other things, the packaging of some of its chocolate bars. The court rejected Darrell Lea's form of order and directed Cadbury to pay costs taxed in the ordinary way as between party and party.