22 July 2014

How can Leeds regain its Lustre?

Leeds Town Hall
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"Has Leeds lost its Lustre" asks The Lawyer today with the red rose above the white. Though Leeds remains an important legal centre the answer would appear to be "yes". As Catrin Griffiths wrote in "Outflanked in this War of the Roses" 21 July 2014 The Lawyer:
"Firms don’t readily offer up turnover figures split out by region, but headcount figures can tell you a lot of what’s been going on behind the scenes. The Lawyer’s data shows that the Leeds Big Six – Addleshaw Goddard, DLA Piper, Eversheds, Pinsent Masons, Squire Sanders Patton Boggs (legacy Hammonds) and Walker Morris – have all markedly reduced their headcounts in the past five years. DLA Piper refuses to give official headcount figures, but we understand it has also seen a drop of around 10 per cent in staff numbers. The biggest resizing has been at Eversheds, which has reduced its total staff numbers by a full third."
Asking "Whatever happened to Leeds" in "Out-of-London is the new London" 16 June 2014  The Lawyer Ms Griffiths noted
"Fifteen years ago it was a legal powerhouse that helped spawn DLA Piper, Eversheds, Pinsent Masons, Hammonds (now Squire Sanders) and Addleshaw Goddard. But as Manchester’s star has risen, so Leeds’ has fallen ...."
This article considers why that decline has occurred and what if anything can be done about it.

The law firms that Ms Griffiths mentioned grew quickly in the 1990s in response to a massive increase in works as a result of demutualization of building societies and a surge in consumer credit. The banking crisis put paid to both with the result that Leeds's GVA contracted sharply. According to The Lawyer it fell by nearly 6% between 2008 and 2009 while Manchester's actually grew slightly reflecting its regeneration and encouragement of new industries. The result, as Ms Griffiths concluded, is that:
"The Manchester brand has the advantage of a regenerated city, international airport, leading higher education institutions, future high-speed rail, a creative culture hub, BBC Salford (which for anyone living south of Birmingham means Manchester) and a couple of minor football teams."
In short, Manchester is doing better because it has a bigger population and a more diverse economy.

Manchester could do even better (and Leeds very much better) if their respective economic hinterlands were bigger. In "Creating a Northern Counterweight to London is good for the Nation" 5 April 2014 IP North West I referred to World Bank research that doubling a city's size increases its productivity by 3 to 8% and Evan Davis's contention that "if the population of Manchester could be quadrupled it would be between 6 and 16% richer than it is now."

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In fact, Manchester and Leeds and also Sheffield and Liverpool are located in an almost continuous built up area that stretches from Wetherby to the Wirral much in the way that Greater Los Angeles stretches from Ventura to San Bernardino in the East and Mission Viejo in the South. As in the North of England the communities of Southern California are separated by large areas of open countryside many of which are state or regional parks. Just as the Pennines separate the Leeds and Sheffield city regions from Greater Manchester and Merseyside the Santa Monica and San Gabriel mountains separate the towns and cities of the Pacific Coast from those in the San Fernando Valley.

The big difference between Southern California and the North of England is that the former thinks of itself as a cohesive and integrated whole whereas the latter does not. The sense of identity is not the result of local government unification - there are four counties and many municipalities in Greater Los Angeles - or massive infrastructure investment - there is nothing like the HS3 that the Chancellor of the Excehequer proposed a few weeks ago - indeed public transport in Southern California was appalling until a few years ago. It is entirely cultural and the thing that stops those of us in South and West Yorkshire, Greater Manchester and Merseyside from acknowledging that we already live and work in a conurbation of 7 million people and exploiting the economic opportunities of such a market for every type of goods and services (including in particular legal services) is our mindset.

This myopia was brought home to me at the Leeds economic conference at the beginning of this month (see "Power. Performance. Potential. Leeds Economic Conference" 5 July 2014 IP North West). The conference was opened by the Deputy Prime Minister who on this occasion spoke a lot of sense:
"It’s time for us to put aside outdated local rivalries. As we’ve seen with the Local Enterprise Partnerships in Leeds, Sheffield and Manchester, united we’re stronger."
He made the point that "Northern cities like Leeds aren't just competing with other locations in the south, east or west of England" but also have to rank against global cities like Frankfurt, Lyon, Bangalore and Chengdu for incoming investment. Clegg argued that "Leeds, along with Sheffield and Manchester, can and should form part of a northern hub, driving economic investment and growth across the north of England."
"Together, they can offer investors access to flexible, highly-skilled work forces, world-class universities with cutting-edge research expertise, a strong industrial base and clusters of innovative businesses in high-growth sectors such as precision manufacturing, creative and professional services, healthcare, retail and green industries."
Unfortunately, Clegg was followed by the leaders of Leeds and Wakefield city councils and the Chief Executive of York who really should have known better indulging in what can only be described as Manchester bashing:
"I wasn't going to mention Manchester" said one, "They're only better at self-promotion" said another. "We've hot a bigger economy £55 billion as opposed to £51 million" chimed a third to the general acclamation of the crowd."
I had come to that conference expecting to be buoyed up. After all we were there to celebrate the start of the Tour de France, one of the world's biggest sporting events, from the United Kingdom. I left the Carriageworks Theatre feeling thoroughly downbeat. So long as that sort of thinking prevails, Leeds, its business community and its professional services sector including its law firms will continue to wither on the vine. If on the other hand Leeds and in particular its professional services sector acknowledged that they were already part of a massive economic region and helped to develop it they could recover some of the dynamism that they displayed in the 1990s.

One problem with developing a sense of identity for the region is that it does not have a name. Again, perhaps, we can look to LA for inspiration. An alternative name for Greater Los Angeles is "The Southland". How about "Northland" for South and West Yorkshire, Greater Manchester and Merseyside?

20 July 2014

Well at least a Yorkshireman invented Cats' Eyes

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The former Manchester Guardian listed Percy Wood of Halifax as one of the top 50 Yorkshire folk of all time. He invented the reflective road market known as cats' eyes in 1933. Apparently, he got the idea after seeing a real cat's eyes while negotiating the still hazardous road from Clayton Heights to Halifax. Reflectors based on Shaw's invention are found all over the world.

However, there have not been so many inventions from our county recently. According to the Intellectual Property Office's Facts and Figures for 2012 and 2013, some 984 British patent applications were filed from Yorkshire and the Humber in 2013 compared to 1,025 in 2012.  In the same year there were 2,822 applications from South East England, 2,588 from London, 1,802 from the East of England, 1,368 from the South West, 1,259 from the North West and 1,180 from the West Midlands. However, Yorkshire was ahead of Scotland (900), the East Midlands (742), Wales (539), North East England (314) and Northern Ireland (237). Yorkshire was also 7th in the number of grants: 171 compared to 437 from South East England, 346 from London, 340 from South West England, 337 from Eastern England, 204 from North West England and 192 from the West Midlands.

There were 2,744 trade mark applications from Yorkshire in 2013 compared to 12,699 from London, 6.197 from South East England, 4,222 from North West England, 3,407 from South West England, 3,227 from the East of England and 2,885 from the West Midlands. With 2,305 registrations in 2013, Yorkshire trails London (10,583), South East England (5,258), North West (3,521), South West (2,951), Eastern England (2,651) and the West Midlands (2,329).

With 78 registered design applications and 59 registrations in 2013 Yorkshire was last but one from the bottom. Only Northern Ireland had fewer applications (19) and registrations (16).  The top three regions for designs were London (1,153 applications and 720 registrations), South East England (1,066 applications and 883 registrations) the North East (548 applications and 484 registrations). North West England had 471 applications and 397 registrations.

We can assist artists, designers, inventors, entrepreneurs and investors in Yorkshire and the Humber with our IP clinics at Barnsley BIC, talks and publications all of which are free of charge. For our chargeable services see "IP Services from Barristers" 6 Apr 2013 4-5 IP. If anyone wants to discuss his article or any patent, trade mark, design or other intellectual property matter he or she should call us on 01484 599090 or get in touch through my contact form. You can also tweet me, write on my wall or send me a message through G+, Linkedin or Xing.

2 July 2014

The Tour de France and ambush marketing

Holmfirth - the Tour de France passes through my home town
















The Tour de France is of particular interest to me this year because the route passes a few hundred yards from my front door. Crash barriers have already been erected along Chapel Hill in Huddersfield and the route is festooned with yellow, green, white and polka dot flags. As everyone in this county knows, the Tour is setting off from Leeds and two of the stages are taking place in Yorkshire with a third in the East of England. There has been an arts festival since the 27 March 2014 and an international business festival in Leeds this week.

Like all major sporting events the Tour is dependent on sponsorship but sponsorship is vulnerable to ambush marketing. To protect the sponsors of the London Olympics from ambush marketing new intellectual property rights were created, namely Olympic association right by the Olympic Symbol etc. (Protection) Act 1995 and London Olympic association right by the London Olympic Games and Paralympic Games Act 2006. HM government was obliged to enact this legislation by the host city contract which it signed with the International Olympic Committee. Such feather bedding for the Olympic sponsors was criticized by many at the time including me (see "Olympics Association Right and London Olympics Association Right" 31 July 2012 NIPC law).

There has been nothing like those association rights for the Tour with the result that there has been a blossoming of yellow bicycles, assorted coloured flags and tea rooms and pubs throughout the county have broken out in measles (or is it polka dots). No doubt this decoration has been with the permission of the tour organizers but could anything be done about it if it was not? La Société du Tour de France has registered a number of Community and UK trade marks for the words "Le Tour de France" and some of the Tour's symbols for a large number of classes but it does not seem to have registered the colours of any of the maillots or indeed the polka dots. There is the the law of passing off, of course, but I would not like to argue that yellow, green or red spots is associated with the Tour and none other. In any case, by the time an application for an injunction came before the courts the cyclists would be well on their way to Champs-Élysées.

So tant pis as our friends across the channel would say, but does it matter?  I would reply "ce n'est pas grave",

5 April 2014

Holding your Own - How to stop others from ripping you off if you are a Private Inventor

Sheffield Central Library, Monday 7 April 2014 18:00 - 19:45



















On Monday 7 April 2014 at 18:00 I shall deliver a talk to Sheffield Inventors Group at the Business and IP Centre of Sheffield Central Library on how to stop others from ripping you off if you are a private inventor.

Until very recently the blunt answer to the question "How can I stop others from ripping me off?" was "You can't". That was because the cost of proceedings in the Patents Court or even the Patents County Court was prohibitive. Litigation in common law countries such as England and the United States has always been more expensive than in civil law countries like France, Germany and the Netherlands.  Moreover, in England the losing party usually has to pay the winning party's costs whereas in the USA it does not.  Moreover, lawyers in the USA have always been allowed to accept instructions upon the promise of a share in any damages that may be awarded whereas until recently English lawyers were not. All of those factors combined to make England one of the most expensive and hazardous jurisdictions for individuals or small or medium enterprises ("SME") to enforce their intellectual property rights ("IPR") in the world,

Up to 2002 that did not matter so much because legal aid was available for IP claims as it was for most civil proceedings. In April of that year paragraph 1 (h) of Schedule 2 to the Access to Justice Act 1999 came into effect which abolished public funding for matters arising out of the carrying on of a business.  Word quickly spread that enforcing a patent or other IPR was too expensive and too risky for all but wealthy individuals and big companies and organizations.  Consequently, fewer and fewer individuals and SME bothered with patent applications with the result that the country of Newton and Faraday now trails not only Germany and France but even the Netherlands with one third of our population and Switzerland with one eighth in the number of applications to the European Patent Office (see "Why IP Yorkshire" 10 Sep 2008).

Since I wrote that article there have been a number of changes that make it cheaper and easier for individuals and SME to protect themselves. First, the costs that a successful party can recover from the other side  in the Patents County Court were capped at £50,000 on 1 Oct 2010 (see "New Patents County Court Rules" 31 Oct 2010 NIPC Law). Secondly, a new small claims track in the Patents County Court was launched on 1 Oct 2012 for claims up to £10,000 (see "Patents County Court - The New Small Claims Track Rules" 20 Sept 2012 NIPC Law). I gave a talk on this new jurisdiction to the Sheffield Inventors Group in "How Small Businesses in Yorkshire can protect their Intellectual Property" 14 Oct 2012. The Patents County Court was abolished on 30 Sept 2013 but it was replaced by the Intellectual Property Enterprise Court ("IPEC") which operates in exactly the same way and with the same rules as its predecessor. Thirdly, new insurance and funding options are now available which reduce the cost and risk of litigation (see "Intellectual Property Litigation - the Funding Options" 10 April 2013 NIPC Law). Finally, HM Government has entered an agreement with most of its EU partners to set up a Unified Patents Court which will hear disputes over unitary patents (European patents treating the territories of the contracting states as though they were one country) (see "Unified Patent Court Comes One Step Closer" 17 Aug 2013 NIPC Law).

In my talk on Monday I shall discuss:

  • the Institutions: the Intellectual Property Office, European Patent Office, Chancery Division, Patents Court and IPEC;
  • the Legislation: the Patents Act 1977 and other IP statutes, the European Patent Convention, Part 63;
  • Practice: Patents Court, Chancery and IPEC Guides;
  • Claims for breach of confidence: How to bring proceedings in IPEC's small claims track;
  • Entitlement Proceedings
  • Infringement Proceedings in IPEC and the Patents Court
  • Threats Actions
  • Revocation Actions
  • Insurance
  • Unified Patent Court.
I shall explain each of these concepts and steps in everyday non-technical language with links to other materials and I shall later post the slides to this website. 

I do hope to see as many readers as possible on Monday but if you can't make it and want to discuss any of these points don't be afraid to give me a ring on 020 7404 5252 during office hours or send me a message through my contact formtweet me, write on my wall or get in touch through G+, Linkedin or Xing.

22 February 2014

Enforcing Your Intellectual Property Rights without Going Bust


How to Enforce your Intellectual Property Rights without Going Bust from Jane Lambert

In my very first post, "Why IP Yorkshire", 10 Sept 2008 I noted that although Team GB may have done very well at the Beijing Olympics our inventors and entrepreneurs are nothing like as successful in the European patent application stakes. We trailed a poor 7th in the number of European patent applications lagging not only behind the economic super-powers, the USA and Japan, but also France and Germany with similar populations and GDP and even trail the Netherlands and Switzerland with a third and an eighth of our population respectively. 

The reason of our lacklustre performance was that start-ups and other small businesses, that are the mainspring of innovation in the UK as in most of our competitors, make much less use of the intellectual property system than their equivalents in other countries and that was largely because the cost of obtaining and enforcing intellectual property protection in the UK was considerably higher than in our competitors.

The costs of enforcing intellectual property rights was identified as a problem by both Gowers (Gowers Review of Intellectual Property, TSO 2006) and Hargreaves (Digital Opportunity A Review of Intellectual Property and Growth) to which Sir Richard Arnold and Sir Rupert Jackson have proposed solutions (see Intellectual Property Court Users’Committee Working Group’s Final Report on Proposals for Reform of the Patents County Court 31 July 2009 and Review of Civil Litigation Costs: Final Report Dec 2009).

Arnold proposed case management reforms that limit the issues that can be heard, the evidence that can be led, the duration of trials and this the recoverable costs of the litigation which I discussed at some length in New Patents County Court Rules 31 Oct 2010. Jackson proposed a new small claims track for the Patents County Court which I discussed in a series of articles which are listed at Patents County Court - the New Small Claims Track Rules 20 Sept 2012. The Patents County Court was abolished with effect from the 30 Sept 2013 and replaced with a new Intellectual Property Enterprise Court ("IPEC") which is part of the Chancery Division on 1 Oct 2013.

On the 15 Jan 2014 I gave a talk on these initiatives to reduce the cost of dispute resolution to Leeds Inventors Group. I mentioned the Intellectual Property Office opinions service which we discussed in Leeds as soon as the service was launched (see "IP Centre of Excellence: Patent Office Opinions"  26 Nov 2006) as well as mutitrack and small claims litigation in IPEC. in his report Hargreaves had urged HM government to press for a single European patent known as a "unified patent" to be granted for all the EU member states except Spain and Italy as though they were a single country. That has now been agreed and disputes under the unified patent will be referred to a special court for all the contracting countries. Under that agreement that court will be based in Paris and will have branches in London and Germany. I summarized the arrangements that have been made so far in my talk.

Should anybody wish to discuss this talk or indeed any matter relating to IP he or she should call me during normal office hours on 01484 599090 or message me through my contact form. You can also tweet me. write on my wall or contact me through G+, Linkedin or Xing.

1 December 2013

Design Right and Registered Designs: Utopia Tableware v BBP Marketing

This was a claim for registered design and unregistered design right infringement in the new Intellectual Property Enterprise Court ("IPEC"). Both the claimant Utopia Tableware Ltd of Chesterfield and the first defendant BBP Marketing Ltd of Mirfield supplied glasses. At the start of the litigation Utopia applied for and won an interim injunction (see Utopia Tableware v BBP Marketing [2013] EWPCC 15 (21 Jan 2013)). However, the evidence on which it relied was found to have been concocted and Birss J referred the matter to the Attorney General under CPR 81.18 so that he could consider committal proceedings (see Utopia Tableware Ltd v BBP Marketing Ltd and Another [2013] EWPCC 28 (30 May 2013)). The action came on for trial before Mr Recorder Campbell on 24 Sept 2013 and he delivered judgment on 12 Nov 2013 (see Utopia Tableware Ltd v BBP Marketing Ltd and Another [2013] EWHC 3483 (IPEC) (12 Nov 2013)).

The Registered Design
Utopia had registered the following design with the Designs Registry under registration number 4021276 pursuant to the Registered Designs Act 1949:

The Design Right
The design document in which the design was recorded appears below.
























Infringing Articles
The following photograph shows the glasses sold by each of the parties.  Utopia's appears to the left and BBP's to the right.
























The Issues
The defendants admitted that they had copied the exterior dimensions of the claimant's design but not its interior measurements nor the wall thickness since their glasses were made out of polycarbonate rather than glass.  Having admitted copying of the exterior dimensions the defendants could hardly deny copying of the unregistered design or claim that their glass produced on an informed user a different overall impression from the registered design. Their defence was that the claimant's design was commonplace and lacked individual character.

Judgment
Mr Recorder Campbell found for Utopia on both points.

As for the "commonplace defence" the judge directed himself at paragraph [58] to identify the relevant design field for the purposes of the Act.  He decided at [69] that it was beer glasses.  Comparing
"The shape of the profile of the outer surfaces of the Claimant's Vessel, that profile in particular including, above a waisted section, an elongated tulip shaped section which tapers inwardly as it approaches the rim of the Claimant's Vessel,"
to similarly shaped glasses distributed by Amstel, Carlsberg and Peroni to promote their beers he concluded that that feature was not commonplace though other features were. As design right can subsist in any aspect of the design of part of an article the Recorder found that that was enough for design right to subsist.

Relying on Judge Birss QC's decision in Samsung Electronics (UK) Ltd v Apple Inc [2012] EWHC 1882 (Pat) (9 July 2012) which I discussed in  Apple v Samsung - compare and contrast 28 Aug 2012 NIPC law the Recorder identified the "informed user" as a beer drinker, held that the designer of a waisted glass had limited design freedom and compared Utopia's glass to the Amstel, Carlsberg and Peroni glasses. Having regard to those factors he concluded that the design did have individual character and was therefore valid.

He therefore held that both Utopia's design  right and the registered had been infringed.

Comment
Despite the submissions of Sir Robin Jacob, the leading scholars on intellectual property law, the Intellectual Property Bar Association and many others the government seems hell bent on its proposal to criminalize registered design right infringement. Had that proposal been law it is possible that the executives of two well established and highly regarded local companies would have been prosecuted, This question whether the registered design had individual character was difficult enough for an experienced intellectual property practitioner to resolve. It is hard to imagine lay justices and juries attempting a similar careful analysis. In a case such as this where the claimant's witnesses had acted particularly badly a conviction would have been intolerable.

22 October 2013

Northern Ballet wins the Achievement in Marketing Category of the UK Theatre Awards
















The performing arts are an important industry in the UK. According to the report Private Investment in Culture 2007/08 published by the Arts & Business section of Business in the Community culture was worth £7.7 billion to the UK economy in 2007.  It may reasonably be assumed to be worth somewhat more now. Northern Ballet is astute as to the value of the arts to business and hosted a breakfast meeting for businessmen and women on the 23 Sept 2013 which attracted patent attorney Debbie Slater from Urquhart-Dykes & Lord as well as me (see Jane Lambert "The Things I do for my Art: Northern Ballet's Breakfast Meeting" 23 Sept 2013 Terpsichore).

During Q & A at the meeting the company's chief executive officer Mark Skipper said that while there was once a time when patronage of the arts was an act of philanthropy it was now one of mutual self-interest.  The reason for that response is that performing arts companies are brands in their own right.  In the case of Northern Ballet this was recognized yesterday by their winning the marketing category at the 2013 UK Theatre awards (see the company's press release "Northern Ballet scoops national marketing award"  21 Oct 2013).  Northern Ballet was granted that award for the success of its communications campaign for Northern Ballet’s tour of The Great Gatsby.
"More than 50,000 people watched a performance of The Great Gatsby in 9 venues throughout the UK including a sell-out run at Sadler’s Wells Theatre. The campaign generated in excess of £1.2 million of ticket sales exceeding financial target by £150,000."
Incidentally, I saw that ballet when it opened in Leeds and reviewed it in "Life follows Art: the Great Gatsby" 8 March 2013 Terpsichore.

Our host at the breakfast meeting was Laraine Penson, Northern Ballet's Director of Communications.  She collected the award on behalf of her company at a luncheon at The Guildhall yesterday.  At the ceremony she said:
"The arts are full of creative communications professionals who are working very hard in a competitive market and difficult economy. I accept this award on behalf of the communications team at Northern Ballet. This award recognises the achievements of the whole company because if the production and performance didn’t meet the audiences expectations all our work would be for nothing.”
The press release notes that Northern Ballet has been shortlisted for the cultural category of the Welcome to Yorkshire "White Rose Awards". As everyone knows one can't wish an actor good luck. You say "Break a leg!" instead. But you can't really say that to a dancer.  My ballet teacher tells me that the balletic equivalent is "chookas" though others say "toi-toi".  Let's wish Northern Ballet both.  As I experienced recently, for only the second time in my lifetime, an institution from our region is capable of true artistic greatness (see "Realizing Another Dream" 15 Sept 2013).

Further Reading
David Wilson "Pythagoras and Pliés – Mathematical Beauty" 5 March 2011 Dave Tries Ballet
Jane Lambert "Cracking Nuts - Copyright in Choreography" 24 Nov 2011 IP Northwest
Jane Lambert "Ballet and Intellectual Property - my Excuse for reviewing 'Beauty and the Beast'" 31 Dec 2011 IP Yorkshire
Jane Lambert "Northern Ballet's Ondine" 14 Sept 2012 IP Yorkshire
Jane Lambert "From Bar to Barre" 20 March 2013 Terpsichore
Jane Lambert "Intellectual Property and Ballet" 20 April 2013 Terpsichore