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Out of the woods? Grasping the nettle The court briefly answered questions 1 and 2 by referring to Google France. If an advertiser purchases a keyword to appear as a sponsored link, then it is using the keyword and such use is in relation to the advertiser’s goods and services, even if the keyword does not appear in the sponsored link itself. It was common ground that at least one of the keywords purchased by M&S was identical to Interflora’s trademark and that the relevant goods and services were identical. It would appear that there was therefore a clear-cut infringement under article 5(1)(a). However, in line with previous judgments, the court stated that this use infringes only if it has an adverse effect on one of the functions of the trademark, such as: guaranteeing the origin or quality of the goods or services; advertising the goods or services; or investment in reputation. As to the ‘origin’ function, the court held that there would be an adverse effect if the sponsored link suggests an economic link between the parties or is so vague that reasonably well-informed and observant users are unable to determine whether or not there is such a link. The court also said that Interflora’s inability to block keyword purchasing through Google (the High Court’s question 4(b)) was irrelevant in this context. On the contrary, if Interflora had the opportunity to block the sponsored links, then failure to do so may form an implied consent. It is also irrelevant if only some users have difficulty in grasping the fact that M&S is not economically linked to Interflora – ‘some’ does not necessarily mean ‘all’, or even ‘most’. The court went on to hold that there was no adverse effect on the ‘advertising’ function. It may be that Interflora is forced to intensify its own advertising efforts, but this is inherent in any fair system of competition (see, again, Google France). Finally, as to the ‘investment’ function, the court held that any use that substantially interferes with the proprietor’s acquiring or preservation of reputation in the mark must be regarded as an adverse effect. However, there is no such adverse effect where the only consequences are to oblige the proprietor to adapt its efforts to acquire or preserve the reputation, or that consumers switch to other goods or services. This statement appears rather unhelpful and seems to contradict itself. What other consequences could there be? If there are no other consequences, then where does this leave the ‘investment’ function? Although the court was at pains to make a distinction between the ‘advertising’ and ‘investment’ functions, it did little to explain why that should be the case or, more importantly, how it can be applied in practice. Turning to the High Court’s question on article 5(2), the court distinguished between detriment to the distinctive character of a mark (‘dilution’) and taking unfair advantage of the distinctive character or repute of a mark (‘free-riding’). Where a sponsored link makes it clear that there is no connection between the parties, the court held that there is no dilution. However, it did not provide any substantive guidance on other cases where the position is not so clear or where no effort to distinguish has been made, instead leaving it for the High Court to reach its own conclusion. This was a missed opportunity for the court to fill an unfortunate gap in the guidance that many practitioners might have hoped for. As regards free-riding, the court relied on its findings in L’Oréal v Bellure (Case C-487/07) and almost fell into the same trap of suggesting that any advantage taken of a trade mark is unfair (see, for example,  EWCA Civ 535, per Jacob LJ at paragraphs 46-50). It being common ground that the ‘Interflora’ mark had sufficient reputation, the court was firmly of the view that the M&S use of the mark took real advantage of that reputation. The court indicated that offering a mere imitation of a trademark proprietor’s good or services, or use which adversely affects the functions of the mark, would not be fair competition and therefore is without due cause. However, the court refrained from providing any further substantial guidance on whether such use was with due cause or unfair, instead again leaving the question to the High Court. The Court of Justice of the European Union has handed down its long-awaited judgment in Interflora v Marks & Spencer (Case C-323/09). The final outcome remains to be decided by the High Court, but the judgment provides important guidance for businesses using competitors’ trademarks as Google ‘AdWords’. However, some parts may leave the High Court, and practitioners, with more questions than it has answered. Google provides a facility for advertisers to promote themselves in searches by purchasing keywords (‘AdWords’ in the Google system). When a user inputs one of these keywords into Google, the paid-for results will appear highlighted at the top or side of the page, with a brief advertising description, formerly marked as ‘Sponsored Links’ and now as ‘Ads’. Any number of parties can purchase the same keyword. Their ranking in the list of sponsored links depends on a combination of the price paid and the quality of the link. Taking advantage of this service, Marks & Spencer (M&S) purchased ‘Interflora’ and several other similar words and phrases as keywords so that a search for that word results in a sponsored link to the section of the M&S website that sells flowers. The word ‘Interflora’ does not appear anywhere in the sponsored link displayed to the user. Interflora sued for infringement of its UK and Community trademarks. It claimed that M&S was using an identical sign in relation to identical goods and services and used it in a way which, without due cause, took unfair advantage of or was detrimental to the distinctive character or repute of its marks (sections 10(1) and (3) of the Trade Marks Act 1994 and it equivalent Articles 5(1)(a) and 5(2) of Directive EEC/89/104). The High Court referred several questions to the Court of Justice for guidance. Some of these questions were withdrawn following the court’s decisions in Google France v Louis Vuitton (Case C-236/08) and related cases. The questions which remained were:1) Did M&S’s actions in relation to the keyword constitute ‘use’ of the mark?2) If so, was that use ‘in relation to’ the relevant goods and services?3) Did that use fall within the scope of either or both of Article 5(1)(a) and 5(2) of the Directive?4) Does it make any difference if: (a) the presentation of the sponsored link was liable to lead some users to believe that M&S is a member of Interflora’s commercial network; or (b) Google did not permit Interflora to block competitors from purchasing its trade mark as a keyword? Jim McDonnell, DLA Piper The outcome of the case remains to be decided upon its return to the High Court. On a wider basis, this judgment is likely to be welcomed by brand owners in confirming that there may be circumstances where they can restrict the use of trademarks as purchased keywords (in sharp contrast to the judgment in Google France). However, there remain a number of areas which might require better clarification, and it will be interesting to see what further guidance the English courts can provide.
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The Solicitors Disciplinary Tribunal will continue its business this week through video calling – and restart work on one of its biggest cases ever.The tribunal building in London has been closed for more than two weeks, with hearings cancelled in the meantime, due to the coronavrus lockdown.Since then, tribunal staff have worked to ensure that remote hearings can proceed with minimal disruption to avoid a backlog of cases building up.The Gazette understands one private hearing has been carried on remotely, and this week the case involving global firm Baker McKenzie will resume with a case management hearing conducted through Zoom. Baker McKenzie and three individuals all represented by counsel will appear from home.The case was effectively put on hold before Christmas due to the health of one party and is not due to resume fully until the end of this month.Former London managing partner Gary Senior is accused of trying to embrace and kiss a colleague in 2012 despite receiving no indication of consent, and persisting despite her indicating that it was not appropriate. Senior, who last year left Baker McKenzie, allegedly acted knowing he was in a position of authority and responsibility. He denies the allegation.Thomas Cassels and Martin Blackburn, who were with Baker McKenzie in 2012 as a partner and head of HR respectively, are being prosecuted along with the firm by the SRA in relation to the investigation that began when Person A made a complaint.The tribunal says in general that individuals participating in remote hearings will be provided with as much information as possible about how the hearing will be conducted, and will have the opportunity to test the technology in advance of the hearing if they so wish.The tribunal’s policy committee will issue a practice direction in the near future. This will be supported by a guide to assist participants in remote hearings.It is expected that most hearings already lined up for the coming months can be carried out remotely, although for some this will not be possible.For new cases issued at the tribunal from last Friday, an amended standard directions document will contain new directions about hearing and expectations of the parties.Paper-based applications can still be made and dealt with online, but the tribunal cannot take delivery of items by DX, courier or post. If the press or public wish to access a public hearing being held remotely they should contact the SDT in advance. *The Law Society is keeping the coronavirus situation under review and monitoring the advice it receives from the Foreign & Commonwealth Office and Public Health England. Find advice and updates here. Please see the Gazette’s dedicated coronavirus page here >>
Sir – You reported last year (RG 12.00 p798) that the Federal Railway Office had signalled the end of its reservations against driverless operation in Germany. EBA section chief Hans Heinrich Grauf had explained to a seminar of the Deutsche Verkehrsforum that the office no longer saw any legal restrictions.This view was based on an study by the Association of German Transport Undertakings (VDV), which suggested that the regulations covering the use of remote control on railways and in factories could also be applied to driverless operation. In the meantime, however, the Federal Ministry of Transport has moved swiftly to damp down any optimism raised by the EBA comments. The Ministry has advised the VDV that it does not in fact intend to alter its legal position. ’Remote control’ regulations only apply to the remote operation of a locomotive or shunting tractor by a driver, and do not cover remote control by automated data processing (EDV) systems. Thus it seems that the signals for driverless operation in Germany are no longer green, as suggested by the EBA, but firmly back to caution. Bureaucracy applies the brakes again!Ralf Roman RossbergMurnauGermany
AddThis Sharing ButtonsShare to FacebookFacebookFacebookShare to TwitterTwitterTwitterShare to LinkedInLinkedInLinkedInPostman assaulted – DumfriesPolice Scotland is investigating the unprovoked attack on a postman as he carried out his deliveries in Dumfries on Friday 9 October 2015. The postman was delivering in Syme Road at around 1030 hours when he was assaulted by a man while in a block of flats. The only description of the man is that he was wearing a light blue coloured hooded to with the hood up. The man then ran off after the assault.Constable Lyndsey Nicholson of Police Scotland at Dumfries said “this appears to be a completely unprovoked attack on a postman going about his deliveries. As a result of this assault the postman received bruising to his face and a black eye. Anyone who was in the Syme Road area around this time is asked to call us at Dumfries on 101 if they can help identify this man.”
EducationLocalNews DSC Tour Guide Course to Complement Tourism Focus by: – October 4, 2019 The Dominica State College is training and certifying tour guides.The Tourism Ministry has been pushing tourism certification and training for some time and has recently trained and certified scores of professionals in tourism-related fields. This announcement from the State College complements that initiative.Director of the Division of Tourism and Hospitality Studies at the Dominica State College, Katie Julien says that the tour guide training program is geared at introducing participants to critical knowledge and skills required to operate effectively as tour guides.She relayed that it places much emphasis on the encouragement of proper attitudes in dealing with visitors.Some of the main areas covered in the training include:Dominica’s Marine EnvironmentProfessional Tour Guiding SkillsEffective CommunicationFlora and Fauna of DominicaEffective Customer ServiceDominica’s History and CultureParticipants will be required to complete oral, written, and practical tests to receive certification. 46 Views no discussions Share Share Share Sharing is caring! Tweet
STMicroelectronics brought next-generation satellite navigation to drivers with the launch of enhanced, always-available, always-accurate 3D positioning on its TESEO III automotive-navigation ICs. The new TESEO DRAW firmware for ST’s multi-constellation positioning chips enables navigation devices to provide continuous, accurate location and turn-by-turn instructions even when satellite signals are poor or unavailable, such as in tunnels, covered car parks, or multi-level highways. TESEO DRAW also enhances performance in built-up areas, such as in urban canyons, where conventional navigation systems can lose accuracy.TESEO DRAW merges the satellite information with data from vehicle sensors such as the gyroscope, accelerometer, and wheel-speed sensors, to calculate location accurately in three dimensions including elevation. If the satellite signal is poor, TESEO DRAW compensates for the loss of accuracy, and if the signal becomes unavailable, navigation continues uninterrupted based on calculated location (dead reckoning). Road tests carried out by ST in difficult under-cover and urban environments have demonstrated continuous tracking from entry to exit in complex multi-level car parks, and at street level between tall buildings, where conventional systems have been unable to track the vehicle.GNSS has revolutionized activities such as commercial logistics, asset management, and personal mobility. Over four billion GNSS devices are now in use worldwide. By enabling high-accuracy 3D dead reckoning, TESEO DRAW expands the opportunities for developers to commercialize new applications. This can provide significant improvements in existing services such as fleet tracking, eCall, or ERA-GLONASS emergency response, usage-based insurance, road tolling, and anti-theft systems.The TESEO DRAW firmware has multiple modes and is capable of referring to sensors on the vehicle’s CAN bus or discrete sensors such as the odometer, reverse sensor, MEMS accelerometer and gyroscope, or MEMS inertial module connected to the TESEO III IC. ST can now provide a unified platform comprising navigation engines, 3D positioning capability, and motion sensors.TESEO III ICs loaded with the new TESEO DRAW firmware are sampling now, and will enter mass production in Q1 2016.
NASA’s third Tracking and Data Relay Satellite-M (TDRS-M) has been successfully placed into the orbit. The next generation communication satellite was launched from the Cape Canaveral Air Force Station in Florida on-board United Launch Alliance (ULA) Atlas V rocket.Ground controllers report the satellite is in good health at the start of a four-month checkout in space by its manufacturer, Boeing. NASA will conduct additional tests before putting TDRS-M into service early next year. When ready, it will become part of NASA’s Space Network providing navigation and high-data-rate communications to the International Space Station, NASA’s Hubble Space Telescope, rockets and a host of other spacecraft.According to the TDRS project team, the TDRS fleet is a critical connection delivering science and human spaceflight data to those who can use it on Earth and that it will expand the capabilities and extend the lifespan of the Space Network, allowing to continue receiving and transmitting mission data well into the next decade.The mission of the TDRS project, established in 1973, is to develop, launch and deliver data communications relay spacecraft to support NASA’s Space Network, which provides high-data-rate communications and accurate navigation. The TDRS-M spacecraft is effectively identical — in both function and performance — to the TDRS-K and TDRS-L spacecraft launched in 2013 and 2014, respectively.The TDRS fleet began operating during the space shuttle era with the launch of TDRS-1 in 1983. Of the TDRS spacecraft launched to date, only two have been retired and five of the nine operational satellites have exceeded their design life and continue to provide essential communications and navigation services.Boeing conducted spacecraft integration and testing earlier this year at its satellite factory in El Segundo, California. After testing and confirming the spacecraft was ready for shipment, launch processing began following TDRS-M’s arrival in Florida June 23.NASA’s Space Communications and Navigation program (SCaN), is part of the Human Exploration and Operations Mission Directorate at the agency’s Headquarters in Washington, and is responsible for the Space Network. The TDRS project office at Goddard manages the TDRS development program. Management of the launch service for TDRS-M is the responsibility of NASA’s Launch Services Program based at the agency’s Kennedy Space Center in Florida. ULA provided the Atlas V rocket launch service.