Wednesday, 26 November 2014

A visit to CIPA towers with Darts-IP

I had a chance to see where CIPA allow Neil Lampert, our media guru, to chill out in CIPA towers today during the coffee break in the free training seminar (complete with mini-croissants, Belgian chocolates and 2 CPD points) given by Darts IP. I have previously discussed the wonderful statistics you can generate using their carefully analysed data on trade mark decisions.  I am sorry but I managed to sneak out without being given an evaluation form so this is it. Obviously top marks for the quality, comfort and location of the venue (such a shame I don't get to go there more often). The catering  was pretty good too, but then you give me chocolate of such quality and I would say that.

Today they showed us just how finely you could tune your searches by combining options in the box on the left with the Points of Law, Trade Mark Comparison and Goods and Services options across the top. You can find all sorts of information on parties or previous decisions in oppositions involving marks like the pair in front of you. If only the courts were consistent, you could predict the result of your case without going to the trouble of fighting it.

The demonstration was preceded by a talk by Michael Edenborough QC master of European Court trade mark practice. He warned us that OHIM were even more experienced than he was and they could use that experience to defeat you. OHIM can be involved in most cases, but sometimes they are on your side as in the recent Rubik's cube decision of 25 November 2014 which is already in the Darts database (see above) . I highlighted his name because Lucas & Co a trademark firm of great repute had instructed him on that case for which Brian Lucas (CPA) developed the "black cage theory" that with some brilliant legal development by his QC and the fact that OHIM were on the trade mark proprietor's side succeeded in showing that this mark, unlike a LEGO brick, was a completely registrable trademark for so many reasons but mainly because all its functional parts are hidden and a black cage is inherently distinctive. (End of Boast).

The options for subscribers allow some amazing pattern matching. Your mark has three identical letters and a different fourth. You can find all the similar fact cases in any jurisdiction. This is just too smart. Knowing how OHIM and indeed any office does not like to be bound by its own mistakes I wonder how wise it might be to rely heavily on  an obscure precedent from an earlier opposition decision, especially if it is an isolated one. I now know how some adverse parties have found obscure cases to cite.

However even OHIM are trying to be consistent on their similarity of goods assessments and Dart's technicians have managed to do some really smart visualisation of how similar or dissimilar a good might be to other goods. Everybody who has a paying subscription really needs to beg to have the tool for statistics on product similarity added to their pack. Its the perfect way to craft a specification that could lead your mark to the register for a limited specification with much reduced risk of opposition.

If you are learning your craft, Darts detailed analysis of cases will allow you to become an expert in no time at all by finding the matching cases that have gone before you. If you have a subscription, use it. If not you need to grab Gary Cook.

1 comment:

  1. "Information is losing its structure" appears in Comment this afternoon on an IPKat post by Neil Wilkof : Love the treatise, but what about those indices? I posted a second Comment agreeing this sentiment - but I'm now wondering whether information might also be over-structured ?