Copyright Protection of Culinary Creations

Two very interesting posts in the IPKat (one by Alberto Bellan here and one by Annsley Merelle Ward here) address the interesting question of copyright protection of culinary creations.

While the copyright protection of recipes in their written form has been the issue of the BGH decision "Marions Kochbuch", the recent decision "Geburtstagszug" might open a way for a copyright protection of the particular aesthetic presentation of food on the plate. 

When doing some search on the history of patent law for a lecture last year, I was surprised that the protection of the creation of cooks might indeed have been the first known monopoly rights for intellectual property in history.

Sybaris, a Greek colony in southern Italy that existed from 720 to 510 B.C., was supposedly known for a luxurious and decadent lifestyle. Quoting from the historian Phylarcus, the Greek writer Athenaeus states:

The Sybarites, having given loose to their luxury, made a law that . . . if any confectioner or cook invented any peculiar and excellent dish, no other artist was allowed to make this for a year; but he alone who invented it was entitled to all the profits to be derived from the manufacture of it for that time; in order that others might be induced to labour at excelling in such pursuits.

(Quoted from "The Law of Patents" by Craig Allen Nard)

Supposing that the legislators grant monopoly rights for intellectual property for the purpose of inciting developments which promote the general prosperity of their people, I think it is very interesting that the focus has shifted from culinary innovations in a luxury society in ancient Greece to technical innovations in the Renaissance era until today. This shows how the way of thinking and the valuation of good food has changed.

Farewell Handwritten Amendments at the EPO

As of January 1, 2014, the EPO does no longer accept submissions including handwritten amendments on replacement sheets of the application documents. Under Rule 86 EPC this also applies to amendments in patent specification documents in opposition proceedings.

This may be of particular relevance if the patentee wishes to submit new requests in the course of oral proceedings. According to the FAQ page:

Documents containing handwritten amendments may be used as a basis for discussion during oral proceedings until agreement is reached on the final text of the patent; a final decision granting a patent or maintaining it in amended form may only be taken on the basis of a document which is not formally deficient.


In order to assist the parties in such circumstances, the Office provides technical facilities that will allow compliance with the formal requirements while ensuring a smooth conduct of the oral proceedings at the same time.

The author of this note has always appreciated the craftsmanship involved in preparing artful collages of paper snippets and spiced op with handwritten notes and the smell of glue in the attorney's rooms. The FAQ page further explains how the new and sterile reality will look like:

Parties using their own laptops or other electronic devices to prepare amendments may rely on the EPO’s public Wireless Network, which is widely available in public areas, or printers available in the EPO. 

For parties who do not use their own electronic equipment, the EPO provides for PCs and printers in the attorney rooms as well as in many rooms used for oral proceedings. Additionally each attorney’s room is equipped with at least two PCs and one local printer. The local printer can be either used via the EPO PC or an external laptop which can be connected via USB cable to the local printer allowing direct use. 

Additionally EPO LAN printers allow for printing PDF documents directly from a standard USB stick (FAT32 filesystem). It is sufficient to stick a USB stick into the USB port of the printer on the left-hand side of the front panel. Then using the touchscreen control panel, select “Print from USB” and choose a PDF document to be printed.
State-of-the-art text editing software (such as MS Word, OpenOffice, etc.) provides for a possibility to directly save any document as a PDF file, which then can be stored on a USB stick and printed from the LAN printers.

 

New Name and New Invalidity Procedure for Registered Designs



The German IP right formerly known as Geschmacksmuster is a fairly powerful tool but has hitherto lingered in a niche existence. One of the reasons might have been that its name was difficult to pronounce for foreign applicants and even for the German public not very telling. According to the press release:

From 1 January 2014, designs - previously named "Geschmacksmuster" in German - will be called "eingetragenes Design" - meaning "registered design" - in Germany. The Act Modernising Designs Law and Revising Provisions for Notifications on Exhibition Protection (Gesetz zur Modernisierung des Geschmacksmusterrechts sowie zur Änderung der Regelungen über die Bekanntmachungen zum Ausstellungsschutz) of 10 October 2013 (Federal Law Gazette I 2013, no. 62, p. 3799) has also implemented other changes facilitating procedures for designs.

"With the renaming, we accommodate language developments," says Cornelia Rudloff-Schäffer, President of the DPMA. "The IP right's subject matter will become easier to understand, referring to both form and appearance of a product."

Invalidity proceedings for registered designs will also be introduced. The designs unit in Jena can declare a registration invalid if a respective application has been submitted. It can be based on absolute or relative grounds for invalidity. In civil proceedings, invalidity of a registered design can only be achieved by putting forward a counterclaim before the designs courts of the Länder from 1 January 2014.

Computers and Mobile Phones in oral Proceedings before the EPO Boards of Appeal

Allowed in Oral Proceedings?

The Vice President of DG3, Wim van Eijk, has issued a notice which might be interested for practitioners:

In oral proceedings before the Boards of Appeal under Article 116 EPC the parties and their representatives are allowed to have with them and to use portable computers such as laptops, tablets or other electronic devices provided that their use does not create any nuisance or disturbance. Where, for example, the use of an electronic device disturbs the oral proceedings, the chairperson may decide to forbid its use.

See here for some remarks on the word "chairperson".

Online File Inspection

As of January 7, 2014, the German Patent Office has opened its data base for online file inspection. Via the DPMARegister website, users may look into the public parts of the files of recently granted patents and of laid-open patent applications, wherein the usual restrictions pertaining to confidential and sensitive information apply.

The documents available for online inspection comprise the parts of files of:

• all patent and utility model applications for which a request for file inspection was submitted on or after 21 January 2013,
• all granted patents and registered utility models published since 21 January 2013 and
• all patent applications filed at the DPMA on or after 21 January 2013 that have already been published.

Apparently, the DPMA staff is still in the process of scanning the files and not every file is actually accessible. The author of this note confirms that the electronic access is provided within a few days when requesting it by clicking on the corresponding link on the bottom of the page with the bibliographic data. A possibility to be notified once the electronic file is available would be very convenient.

Further details are available in Notice No. 12/13 of the President of the German Patent and Trade Mark Office of 28 November 2013 and in the Help pages provided by the DPMA.

Dressing up as Pippi Longstocking Does not Infringe Copyright

Carnival season is approaching and it was time for the BGH to provide the fun of dressing up as somebody else with a sound legal basis.

In the decision "Pippi-Langstrumpf-Kostüm" (I ZR 52/12) the legal successors of the copyright of late Astrid Lindgren had sued a supermarket advertising for Pippi-Longstocking carnival costumes for damages.

The BGH rejected the action by confirming the earlier case-law that individual characters of literary works may well be the subject of isolated copyrights. However, "this presupposes that the author of this figure provides it with a distinctive personality by the combination of salient personality traits and distinguishing exterior features. Here, a rigorous test must be applied. Just the description of the external shape of a figure or acting their appearance will not be enough for it in most cases."

The mere reference to literary figures in other works it is not sufficient to infringe copyright, as the Ist senate says:
Especially for works that are very well known, is usually sufficient to provide only slight hints, especially in relation to external features, to make a clear reference to the earlier work. It then has to be examined in each case, whether such a reference already implies the takeover of the personal characteristics.... In the present case the complete image of the literary figure of Pippi Longstocking as relevant for copyright is obtained only by means of a mental link the viewer establishes with the dominant traits of character, as embodied in the superior-known literary work, this complete image is, however, not visible in the pictures of the advertisment.

Wir sind das Volk - No Distinctive Character

The Monday demonstrations (Montagdemonstrationen) in 1989 in Leipzig were the events paving the way to the German re-unification in October 1990. The most famous chant became Wir sind das Volk! ("We are the people!"), reminding the GDR leaders that a democratic republic has to be ruled by the people, not by an undemocratic party claiming to represent them.

According to an article in the Munich-based Süddeutsche Zeitung, the German Patent- and Trademark Office DPMA has now deleted a trademark containing the words "Wir sind das Volk" which had been registered by a rightist splinter party for the reason of lack of distinctiveness. The request of cancellation had been filed by the city of Leipzig represented by its mayor Burkhard Jung.

The decision is not available on the internet (at least as far as I know) such that we have to rely on the Süddeutsche Zeitung as to what concerns the more detailed reasons. Allegedly, the DPMA found that the lack of distinctiveness results from the inseparable connection with the jounger German history, the end of the GDR and the German reunification.

According to Burkhard Jung: "It is now clear that this decisive phrase belongs to those who have carried it out into the world: the people" and that it is further clarified "that rightist splinter groups cannot protect this sentence to make money out of it".

A look into the official register reveals that the trademark concerned must be No. 3020110368171. filed in July 2011. However, a further interesting result of the inspection of the register is that the former mayor of Leipzig Wolfgang Tiefensee had registered a trademark on "Wir sind das Volk" in 2002 together with Christian Führer, a priest of Nikolai Church in  Leipzig "in order to avoid abuse" (see here).

Apparently, avoiding abuse is not a proper use of the trademark such that the earlier trademark was deleted in 2011 on request by a third party (guess who?) due to non-use.