Is it possible to trademark a smell?

Following the ECJ's ruling in the 2001 Ralf Sieckmann case, courts have continued to support the view that it is not possible to register smells or sounds as trademarks. A smell cannot be adequately graphically represented by a verbal description because it is too imprecise. Manufactured smells (which would include scents and perfumes) can give rise to intellectual property rights which will generally attach to the information describing the ingredients of / or formulae for the smells or to the processes of production (or both). This type of information has traditionally been protected by treating it as a trade secret.

By way of analogy, take for example the ingredients for Coca-Cola®. This information has always been guarded by the company as a trade secret and its disclosure to employees or third parties has always been under the form of non-disclosure agreements. Trade secrets are generally enforced by contract.

The advantage of holding a trade secret is that the intellectual property rights can exist indefinitely so long as you manage to keep it a secret. The trick is to make sure that you have sufficient contracts in place (whether with your employees or contract manufacturers or other third parties) to allow you to disclose freely the ingredients and means of production of your scents on a need to know basis. Any misuse or unauthorized disclosure of a trade secret by a contracted party would generally amount to a breach of contract and an actionable claim in the courts, giving the holder the right to an injunctive remedy (where available) and possible recovery of damages.


If you would like more information on this article or require assistance in the preparation of non-disclosure or employer/employee covenant terms to safe-guard this type of intellectual property, please contact Forde Campbell LLP.

British Government to Publish Details of I.T. Contracts starting July 2010

Cameron's bid to increase spending transparancy in Government has begun. July 2010 will see the introduction of online publications detailing all new central government ICT contracts together with all new central government tender documents for contracts over £10,000.

Later on in the year, new items of central government spending over £25,000 will also be made available online with UK international development spending over £25,000 and all new central government contracts to be published in full from January 2011.

Cameron has asked departments to take "immediate action" to ensure that the deadlines are met and that the information is usable by people regardless of computer specification.

Dear Secretary of State

Greater transparency across Government is at the heart of our shared commitment to enable the public to hold politicians and public bodies to account; to reduce the deficit and deliver better value for money in public spending; and to realise significant economic benefits by enabling businesses and non-profit organisations to build innovative applications and websites using public data.

The Government must set new standards for transparency, and our Coalition Programme for government sets out a number of specific commitments. The Government’s initial transparency commitments are set out below, alongside deadlines for publication. Limited exemptions on national security and personal privacy grounds will be permitted.

Central government spending transparency

• Historic COINS spending data to be published online in June 2010.
• All new central government ICT contracts to be published online from July 2010.
• All new central government tender documents for contracts over £10,000 to be published on a single website from September 2010, with this information to be made available to the public free of charge.
• New items of central government spending over £25,000 to be published online from November 2010.
• All new central government contracts to be published in full from January 2011.
• All UK international development spending over £25,000 to be published online from January 2011.

Local government spending transparency

• New items of local government spending over £500 to be published on a council-by-council basis from January 2011.
• New local government contracts and tender documents for expenditure over £500 to be published in full from January 2011.

Other key government datasets

• Crime data to be published at a level that allows the public to see what is happening on their streets from January 2011.
• Names, grades, job titles and annual pay rates for most Senior Civil Servants with salaries above £150,000 to be published in June 2010.
• Names, grades, job titles and annual pay rates for most Senior Civil Servants and NDPB officials with salaries higher than the lowest permissible in Pay Band 1 of the Senior Civil Service pay scale to be published from September 2010.
• Organograms for central government departments and agencies that include all staff positions to be published in a common format from October 2010.

Given the importance of this agenda, the Deputy Prime Minister and I would be grateful if departments would take immediate action to meet this timetable for data transparency, and to ensure that any data published is made available in an open format so that it can be re-used by third parties. From July 2010, government departments and agencies should ensure that any information published includes the underlying data in an open standardised format.

Of course, the release of the datasets specified in the Coalition Programme is just the beginning of the transparency process. In advance of introducing any necessary legislation to effect our Right to Data proposals, public requests to departments for the release of government datasets should be handled in line with the principles underpinning those proposals: a presumption in favour of transparency, with all published data licensed for free reuse.

To oversee the implementation of our transparency commitments, a Public Sector Transparency Board will be established in the Cabinet Office, which will be chaired by the Minister for the Cabinet Office Francis Maude. Board representation will include a mix of external experts and data users, and public sector data specialists; members will include Tom Steinberg, one of the UK’s leading experts on data transparency. The Board will provide support to departments as they deliver on the Government’s transparency commitments set out in this letter. The Board will also be responsible for setting open data standards across the public sector, publishing further datasets on the basis of public demand, and – in conjunction with the Ministry of Justice – will further develop the Right to Data and advise on its implementation.

I look forward to welcoming rapid progress on this agenda in the coming weeks.

I am copying this letter to Sir Gus O'Donnell.

Source

OFCOM Publishes Consultation Paper on Dealing with Online Copyright Infringement

by Rory Campbell

The Digital Economy Act 2010 gave Ofcom the responsibility of managing the controversial process of tackling copyright infringement via the internet.


The Act envisaged Ofcom having power to require ISPs to send warnings to subscribers infringing copyright. Failure to comply with a specific number of warnings would result in the identity of an infringing user being made available to copyright owners, who would then be able to take legal action against the infringing user.


The Act required Ofcom to draw up and enforce a code of practice describing how the system would operate, with the code being published by 8th January 2011. Ofcom published a draft code as a consultation on 1st June 2010, inviting responses by 30th July 2010. A copy of the code can be found here.


The consultation proposals include the following:

• Ofcom proposes that the code only covers larger ISPs, which Ofcom defines as fixed ISPs with more than 400,000 subscribers. This would include BT, Talk Talk, Virgin Media, Sky, Orange, O2 and Post Office. Small and medium sized ISPs would escape the remit of the code unless Ofcom receives evidence that subscribers to any such ISP are persistently infringing copyright.

• Ofcom acknowledges that it needs to create a proper system to check that any allegation against an alleged infringer is based on “credible evidence, gathered in a robust manner”. Any person accused of infringement will be able to appeal to an independent body, and Ofcom’s consultation proposes that any such person should be granted anonymity.

• The consultation proposes that once an ISP receives a copyright infringement report from a copyright owner, the ISP notifies the alleged infringer. The alleged infringer is given an easy to understand explanation of the allegations, and of the steps the subscriber can take to challenge the allegation – and to protect their network from being hijacked for the purposes of infringement.

• If an alleged infringer receives three notifications, their identity may be included in a copyright infringement list requested by the copyright owner. The copyright owner can then commence legal action against the alleged infringer.


Ofcom is clearly aware of the high temperature of the debate over the fairness of the Digital Economy Act: and it creates a future breathing space for itself by pointing out that enforcement under the Act needs to be one component in a broader approach to digital copyright infringement: “we note that [enforcement measures under the Act] were always expected to be complemented by a wider set of activity…including consumer education, the promotion of lawful alternative services and targeted legal action against serious offenders” (Ofcom consultation paragraph 1.9).


If you want legal advice on how the Digital Economy Act may affect you or your business, feel free to contact us at rory@fordelaw.com or on 028 44 33 00 23.

Forde Campbell LLP is a Northern Irish commercial law firm specializing in Media, IP and IT.