If London really is the litigation capital of the world, our Intellectual Property Enterprise Court (lately rebranded from the dowdy-sounding Patent County Court) will have to up its game. Not in the quality of its proceedings but its ability to list cases that tickle news headline writers. Obiter can’t help noticing that the three most newsworthy IP cases of the last month have been decided elsewhere.
First up, the European Court of Justice’s ruling against an attempt to trademark the shape of Kit Kat bars: ‘Two fingers to Nestle’, as the Mirror reported it.
Then we have a federal court in California hearing a claim by People for the Ethical Treatment of Animals that a macaque monkey should own the rights to a selfie taken in the Indonesian jungle. According to the claimant, the monkey could not bring its own claim ‘due to inaccessibility and incapacity’. Or, as The Times headlined it: ‘Animal activists make a monkey of copyright law.’
Most famously, a US district court in California (we detect a theme here) decided that music publisher Warner/Chappell can no longer claim royalties on the song Happy Birthday. Judge George King’s solomonic ruling was that the 1935 copyright in a song dating from 1893 related only to piano arrangements: the basic tune had already passed out of copyright. The decision was rather limply headlined in the Daily Mail: ‘Federal judge rules Happy Birthday IS in the public domain’.
Still, there is hope yet. The Kit Kat battle could yet come to London if Nestle decides to pursue its trademark further.