Category Archives: Intellectual Property

Sweat The Small Stuff When Licensing Oracle Software

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Enterprise-level software solutions often entail complex licensing challenges. Many of the thorniest questions often center on how to license software in virtualized environments, especially if the goal is to use something less than the full processing power of the hosting infrastructure. IBM licensees should be familiar with Big Blue’s requirement (in most cases) to deploy its IBM License Metric Tool (ILMT) in order to track the usage of products licensed on a sub-capacity basis. However, IBM certainly is not alone in the marketplace in forcing its customers to jump through hoops to use its products in cost-effective ways. Oracle’s requirements in this area can be equally daunting, depending on the hardware where the Oracle solutions are to be deployed.

Oracle allows its licensees to us “Hard Partitioning” to limit the number of software licenses required for a server or a cluster of servers. However, while Hard Partitioning may mean different things to different IT administrators, it means a set of specific requirements for Oracle, all of which must be carefully controlled in order to avoid unpleasant licensing surprises:

  • You must use Oracle-approved technologies to hard-partition your servers. Those technologies currently include the following:
    • Dynamic System Domains (DSD) — enabled by Dynamic Reconfiguration (DR),
    • Solaris Zones (also known as Solaris Containers, capped Zones/Containers only),
    • LPAR (adds DLPAR with AIX 5.2),
    • Micro-Partitions (capped partitions only),
    • vPar,
    • nPar,
    • Integrity Virtual Machine (capped partitions only),
    • Secure Resource Partitions (capped partitions only),
    • Fujitsu’s PPAR, and
    • Oracle VM Server (provided additional requirements are satisfied)
  • If the software is to be deployed on certain Oracle Engineered Systems, then the licensee needs to use Oracle VM Server and Oracle Enterprise Manager (OEM) to set up and report on “Trusted Partitions” where the software will be running. OEM can be deployed in either “Connected” or “Disconnected” mode: in the former, OEM reports on software usage directly to My Oracle Support, while in the latter the licensee is required to generate quarterly usage reports and to retain those reports for at least two years.
  • In every case where OVM is to be used as a Hard Partitioning technology, it is necessary to disable live migration of VMs and otherwise to follow Oracle’s technical instructions to allocate vCPU resources.

Businesses planning to license Oracle software on a sub-capacity basis need to review all of the requirements against current and compatible technologies deployed in their environments in order to determine whether the administrative costs associated with setting-up and maintaining those software deployments will make sense in the long run.

Interflora v M&S – The Saga Continues

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The 6 year legal battle between flower delivery giant Interflora and M&S has taken a new twist following the Court of Appeal’s latest appeal ruling in the case (Interflora Inc & Anor v Marks and Spencer plc [2014] EWCA Civ 1403). The appeal was brought by M&S in an effort to overturn the decision reached at trial last May by Mr Justice Arnold who held that M&S had infringed Interflora’s trade marks.

Background

Interflora originally brought its infringement claim against M&S in the High Court back in 2008.  It had objected to M&S paying Google for the right to use the keyword “interflora” as a search term to help generate adverts promoting its own (i.e. M&S’s) competing flower delivery service.   As a result of M&S’s actions, consumers using “interflora” as a Google search term were led to a search results page in which M&S’s service was prominently advertised.

Interflora argued that M&S was infringing its very well-known Interflora trade mark and that it was unfair for M&S to use someone else’s brand in this way to drive internet traffic to its own competing service.  To add insult to injury, in order to stop M&S’s advertising appearing higher up the search results page than their own, Interflora were forced to spend large sums of money “outbidding” M&S for the right to use their own name as a paid for keyword.  Google, meanwhile, was laughing all the way to the bank.

The case has been very hard fought on both sides and a number of interim rulings have been made both before and since the trial.  Indeed, prior to it reaching trial in 2013, there had already been several reported High Court decisions in Interflora including two trips to the Court of Appeal and a reference to the Court of Justice of the European Union (CJEU).

The CJEU had also, in the meantime, issued judgments in a number of other keyword advertising cases and in doing so has created a new test for infringement in such cases.  According to the CJEU, there will be infringement if the keyword advertising “does not enable [average consumers] or enables them only with difficulty to ascertain whether the goods or services referred to in the advert originate from the [trade mark owner, a connected party]..or a third party.”

At the trial, applying that test, the judge Arnold J narrowly found in Interflora’s favour.  In a substantial judgment running to over 300 paragraphs, he ruled that there had been an infringement of Interflora’s trade mark by M&S through the use by M&S of the Interflora keyword.

However, M&S appealed the decision and on 5 November 2014, the Court of Appeal gave its judgment in the appeal – itself a lengthy affair running to 189 paragraphs spread over 69 pages!

The result of the appeal

In its judgment, the Court of Appeal has accepted many of M&S’s criticisms of the judge’s decision- making process and his approach to the burden of proof.  It has upheld his approach on other matters such as the correct application of the “average consumer” test.  But it has allowed M&S’s appeal.

The finding of infringement made at trial has thus been set aside.  However, somewhat unusually, the Court has not substituted a decision of its own on the question of infringement (which in this case

could well have resulted in the dismissal of Interflora’s action).  Instead, the Court has chosen to send the matter back to the High Court for a retrial.

The implication is that if the trial judge adopts the approach approved by the Court of Appeal, this will result in a different decision by the judge compared to last time.  But despite this, the Court did not feel quite able to save the parties the time and cost of another trial.   So the possible outcome remains uncertain.  Although the trial judge will have to disregard some of the evidence that had previously assisted Interflora and abandon the idea that M&S bears any burden of proof, this does not mean that M&S’s defence will automatically succeed.

It does seem incredible that this case could have lasted so long and that even now, after so many hearings and appeals, we still do not know who has won.   It remains to be seen whether the High Court will reach a different conclusion when the case is heard at trial for the second time – and whether that ruling will itself be appealed!

Meanwhile, there must also be a possibility of an appeal to the Supreme Court or even another reference to the CJEU.

Strong support for the CJEU

One of the difficult issues facing the Courts throughout – both in this case and more generally in similar “adwords” cases – has been reconciling the apparently irreconcilable judgments of the CJEU in its previous case law on keyword advertising.  In particular the judgments in Google France and Die BergSpechte

To the surprise of many IP lawyers, the Court of Appeal has now endorsed that case law (described at one point earlier in the proceedings as “unfathomable” as making “no sense” by M&S’s leading counsel).  Instead, the Court appears to have glossed over some of the problems created by the CJEU which have since troubled both judges and IP lawyers alike.  For example, why is the CJEU’s test for trade mark infringement exactly the same for infringement under Article 5(1)(a) of the Trade Marks Directive as it is for cases under Article 5(1)(b) –  the key point being that both provisions have clearly different requirements.  One requires a likelihood of confusion and the other does not.  Does it really make sense to treat them as being the same as the CJEU has apparently done and to ignore the wording of the legislation?

The Court of Appeal has now answered this question in the affirmative and basically said that this doesn’t matter – at least in the context of keyword advertising cases.   It is all rather puzzling.

The Court has also confirmed that Arnold J’s analysis of the conundrum created by the CJEU is wrong and that the burden of proof in a keyword advertising infringement case lies squarely on the trade mark owner not the alleged infringer.

The death of “initial interest” confusion”?

Another of the issues touched on by the Court of Appeal in its lengthy 69 page judgment in Interflora, isthe subject of so-called “initial interest confusion” (IIC)

This is a doctrine that is well established in the US and which has gained some traction in recent years, at least in the UK, following another decision of Arnold J in OCH Ziff Management v OCH Ziff Capital.

IIC is a term used to describe a scenario in which a person may be initially confused by the use of a sign identical or similar to a trade mark prior to making a purchase of the goods or services involved (as opposed to still being confused at the point at which they actually make the purchase).

The judge in OCH Ziff held that IIC was good enough to constitute confusion for the purposes of both passing off and trade mark infringement.  (By the same token, so called “post-sale” confusion has also become an accepted way in which trade marks may be infringed).

However, in Interflora, the Court of Appeal has gone out of its way to frown on the whole doctrine of IIC and the Court has expressly stated that IIC should play no part in trade mark infringement cases – at least where those cases involve disputes about keyword advertising.

As the Court’s observations about IIC were specifically directed at cases concerning keyword advertising, this does not necessarily mean that IIC is now dead in other trade mark cases.  But it is certain that the comments of the Court in Interflora will be relied upon by future defendants who are faced with claims based on IIC.  The Court of Appeal has seemingly reopened an aspect of the law that was thought to have been fairly well settled.

The “average consumer”

One of the issues that has occupied considerable judicial time in the Interflora case is the correct approach to be adopted by the Court when assessing the question of likelihood of confusion or the new CJEU-created test for infringement in keyword advertising cases.  It is well established that these have to be judged by reference to the “average consumer who is reasonably well informed and reasonably observant and circumspect”.   But exactly how this doctrine should be applied by the Court remains a contentious subject.

In Interflora, M&S argued that the judge had been wrong to take into account that although the majority of average consumers were unlikely to be confused, a significant percentage of them nevertheless were.  The M&S approach was that once you had identified who the notional average consumer was, it was only that person’s perception that mattered.  So the judge should have looked at the question from the perspective of the notional average consumer and answered the question one way or the other – in the negative.

The Court of Appeal rejected this approach.   The Court’s conclusions on the application of the “average consumer” test were summarised thus:

“…we think it makes no difference whether the question is asked and answered from the perspective of the single hypothetical well-informed and reasonably observant internet user or whether that hypothetical person provides the benchmark or threshold for the purposes of identifying the population of internet users whose views are material.”

“…We do not accept that a finding of infringement is precluded by a finding that many consumers, of whom the average consumer is representative, would not be confused. To the contrary, if, having regard to the perceptions and expectations of the average consumer, the court concludes that a significant proportion of the relevant public is likely to be confused such as to warrant the intervention of the court then we believe it may properly find infringement.”

“…we consider the judge was entitled to have regard to the effect of the advertisements upon a significant section of the relevant class of consumers, and he was not barred from finding infringement by a determination that the majority of consumers were not confused….”

This part of the Court’s ruling is important for would-be claimants because it underlines that you can still win an infringement case even if only a minority of the relevant population are confused or (at least in the case of keyword advertising cases) unclear as to the origin of the advertisement or advertiser.

Negative-matching

Having allowed M&S’s appeal on liability, the Court went on to comment on the follow up judgment that had been made by Arnold J when he came to make the orders implementing his decision on liability.

Interestingly, the Court of Appeal has held that it is appropriate in these types of cases that where an injunction is imposed to stop the use of a trade mark as a keyword, the infringer can also be required to set up “negative matching” against the trade mark on its Google account.  This is because due to the way Google works, in some cases even if M&S were to be barred from using “interflora” as a keyword, it nevertheless remains possible that where a consumer enters the word “interflora” as a keyword, this may still bring up M&S adverts.   The Court agreed with Arnold J’s analysis that in such cases, the infringer should ensure that the offending term was “negative matched” by Google so that this would not happen.

This is a somewhat surprising (if pragmatic) part of the ruling but appears to be a sensible one as it should reduce the prospect of further disputes in cases where a party has been banned from using an infringing keyword.

Where next for this case?

It is a sorry state of affairs that after so long and despite so much judicial water having gone under the bridge, the parties still do not know where they stand.  One can only imagine how much money has now been spent on legal costs in this case.

All in all the Interflora case is not exactly a good advertisement for IP litigation.  Lawyers will have their own views as to where the blame lies for this sorry state of affairs.  But one of the obvious issues here is surely the fact that the Courts are having to apply to the modern-day internet age, trade mark laws that were drawn up more than 25 years ago.  That is clearly proving difficult, both at European and UK level.

Meanwhile, notwithstanding the Court of Appeal’s supportive tone, the debate about the qualities of the CJEU’s jurisprudence in this area will surely continue.

IP Protection For Websites

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For many businesses, a website is among the company’s most valuable intangible assets. A company’s website (or mobile site) serves as its front door, calling card, storefront, and corporate bio for actual and potential customers.

However, many businesses fail to protect this asset until it is exposed to risk. For example, small businesses who rely on a single employee or contractor to develop and maintain the site can face problems maintaining and updating the site if that employee or contractor relationship ends. Or, they may find a competitor copying the features that provide the most business value.

What can companies do to avoid these issues?  Useful practices include:

  • Own the code.  Many companies hire outside contractors to design and maintain the company website. When doing this, it’s critical that the development agreement provide the company with rights to control, modify, copy and use the code — whether through ownership or license. A company who pays for software development typically does not have the right to copy, modify or distribute it unless the development agreement specifically says so.
  • Control the code.   It’s also important that the company receive copies of all developed code, even if the contractor is hosting the website. If the contractor fails to perform, loses a key employee, or simply starts to charge more than the company wants to pay, the company will find it impossible to go in another direction unless and until it has the  code. Too often, companies fail to include this requirement in their development agreements. Or if they do, they don’t enforce it until a problem occurs — at which point it may be too late.
  • Identify your trademarks.  A website is the first place that many customers will go to discover information about the company’s products or services. The names of many products and services may be trademarks, even if the company hasn’t registered the marks with the U.S. Patent and Trademark Office (USPTO). Although not legally binding, the use of a “TM” symbol with unregistered marks can help put others on notice of the words or phrases that a company considers to be its valuable trademarks.
  • Consider trade dress protection.  Trade dress protection, which is available under U.S. trademark law as well as state laws of unfair competition, covers the distinctive features of product’s physical appearance.  Several federal district courts, including those in Pennsylvania, California, Louisiana, Washington and Texas, have held that the overall “look and feel” of a website can be trade dress that is entitled to protection under the federal trademark statute.  To receive trade dress protection, the look and feel must (1) be distinctive, (2) have secondary meaning, and (3) be non-functional.
  • (Maybe) patent the unique features. Many websites contain unique functionality that can be considered to be a patentable invention under U.S. patent law.  While patenting software has become much more difficult in the wake of the U.S. Supreme Court’s decision in Alice v. CLS Bank, patent applications that claim  significantly more than just an abstract idea can still find success at the USPTO.

Belgian Supreme Court Rules On Prima Facie Validity Of Patents

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On 12 September 2014, the Belgian Supreme Court (Hof van Cassatie/Cour de Cassation) issued a judgment on the interpretation to be given to the notion of the “prima facie” validity of patents. The Supreme Court held that the finding that there is no final judgment invalidating the patent is not sufficient to determine the prima facie validity of that patent.

At issue was a seizure in counterfeit matters (beslag inzake namaak/saisie-contrefaçon) pursuant to Article 1369bis/1, §3, paragraph 1 of the Judicial Code (Gerechtelijk Wetboek/Code Judiciaire) which had been imposed on Syral Belgium (“Syral”), a manufacturer of complex sugar. The counterfeit seizure had been requested by a French competitor of Syral’s, Roquette Frères (“RF”). RF’s request was based on the French and Belgian branches of EP 0 905 138(“EP’138”).After being granted by the European Patent Office (“EPO”), the EPO patent becomes a bundle of national patents, subject to the national law of each state. This means that for each jurisdiction, the national branch of the patent exists separately from the other national branches of the patent.

The French branch of EP’138 had been declared invalid by the French Court of First Instance and the English courts had also annulled their national part of EP’138.

In appeal proceedings in which the seizure in counterfeit matters had been challenged, the Court of Appeal in Antwerp held that, notwithstanding the foreign judgments invalidating the national patents, RF could still rely on the prima facie validity of its French patent because the French annulment had not yet become final pending the appeal against the French Court of First Instance’s judgment. As a result, the French proceedings had no relevance for the Belgian procedure. Similarly, the annulment of the patent by the UK Court did not influence the Belgian patent, because of its limited territorial effect. Syral brought an appeal against the judgment of the Court of Appeal before the Supreme Court.

The Supreme Court explained that, under Belgian law, interim measures pursuant to Article 1369bis/1, §3, paragraph 1 of the Judicial Code can be ordered if the judge finds that the intellectual property right invoked appears to be valid (ogenschijnlijk geldig/ selon toutes apparences valable). Thereby, the judge does not have the authority to carry out a full legal analysis and a substantial technical examination. Still, the Supreme Court added that the examining court should “take into account all facts and circumstances invoked by the parties relating to the validity of the patent”.

The majority of the case law on prima facie validity currently agrees that the starting-point of the legal assessment is the presumption of validity of a patent that is in force. This is based on the fact that European patents, prior to being granted, are subject to review by experts carrying out a substantive assessment.

The Supreme Court judgment appears to warn against an overly formalistic application of this theory. The Supreme Court held that it results from Article 1369bis/1, §3,first paragraphof the Judicial Code that the court must take account of all the elements raised by the parties. Accordingly, a Court cannot simply ignore a decision at first instance, even if it has not become final and the patent therefore remains in force. Similarly, the judge must consider the invalidation of other national branches of the same EPO patent. Hence, the judgment must explain why in its view there is no reason to follow such decisions.

The Supreme Court judgment is expected to create an unwelcome burden for plaintiffs in prima facie procedures. Indeed, the Supreme Court did not give any guidance for the assessment of prima facie validity and how it is different from a validity assessment on the merits. Clearly, the purpose of such a prima facie review should be to have only a cursory examination of the validity of a patent (as opposed to the often very long and complex review of validity in proceedings on the merits). The Supreme Court would now seem to encourage defendants in counterfeit seizure cases to mount invalidity defences.

Crumbs Court Deals Protection For Trademark Licensees In Bankruptcy

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The Bankruptcy Code definition of “intellectual property” does not explicitly include “trademarks.”1 This has led to trademark licensees losing their rights to use the trademark upon rejection of the license in bankruptcy.

A recent decision in the Crumbs2 bankruptcy case in New Jersey addressed this and related issues, finding that trademark licenses can be afforded the protections of § 365(n) based on a court’s equitable powers, notwithstanding their absence from the definition of “intellectual property.” Without consent from licensees to have their rights affected in a § 363 sale, these rights are preserved.

Some licensees are therefore permitted to continue using any intellectual property under such license agreements for the duration of their terms. Any royalties generated under these license agreements are payable directly to the debtor until the sale closes, provided the purchaser purchases the debtor’s accounts receivable, or until rejected or assumed and assigned.

Background

As with many Chapter 11 cases in recent years, the Crumbs bankruptcy was sold pursuant to § 363 almost two months after the petition date pursuant to a credit bid Asset Purchase Agreement (APA) entered into on the petition date with Lemonis Fischer Acquisition Company, LLC (LFAC).

Following Court approval of the sale to LFAC, the Debtors moved to reject certain executory contracts, including six license agreements (the License Agreements) for use of the Debtors’ “Crumbs” trademark and trade secrets (the IP).3 The License Agreements were originally procured for the Debtors by Brand Squared Licensing (BSL), which also provided certain ancillary licensing services to the Debtors. BSL replied to the rejection motion, asserting the Licensees could elect to retain their rights under the License Agreements pursuant to § 365(n), and that BSL would be entitled to royalties derived from the Licensees’ continued use of the IP. The Debtors withdrew the rejection motion as to the License Agreements. LFAC then moved for an order in aid of the Court’s sale order to clarify several open issues concerning the effect of the sale order on the parties’ respective rights with regard to the License Agreements.

In a written opinion filed on October 31, 2014 (the Crumbs Opinion),4 the Court denied LFAC’s motion and considered: (i) whether trademark licensees are within the scope of § 365(n) upon rejection of their respective trademark licenses, even though “trademarks” are not explicitly included in the Bankruptcy Code definition of “intellectual property”; (ii) whether a sale under § 363(b) and (f) trumps and extinguishes rights of third party licensees under § 365(n); and (iii) which party is entitled to collect royalties from the Licensees’ use of the IP, to the extent continuing obligations exist.

Trademark Licenses Are Within the Scope of § 365(n)

Section 365(n) addresses rejection of rights pertaining to intellectual property. The Bankruptcy Code’s definition of “intellectual property” does not specifically include “trademarks.” To determine whether § 365(n) should include trademark licenses within its scope, the Court held it is improper to draw a negative inference from the Bankruptcy Code’s omission of “trademarks” from the definition of “intellectual property.” Citing legislative history and In re Exide Technologies,5 the Court found that Congress intended bankruptcy courts to use their equitable powers and decide, on a case-by-case basis, whether trademark licensees may retain rights under § 365(n).6

The Court refused to invalidate the Licensees rights under § 365(n). It determined it would be inequitable to strip the Licensees’ rights if the License Agreements were rejected, since those rights were already bargained away by the Debtors. The Court also noted that this holding would not prejudice the purchaser, LFAC, who entered the transaction after performing due diligence and could have adjusted its purchase price to account for the License Agreements.

The Court further rejected LFAC’s argument that allowing the Licensees to retain their rights would provide LFAC with little control over the quality of products or services provided under its newly-acquired IP. The Court noted that protections exist outside bankruptcy which provide Licensees incentive to maintain a certain standard of quality, including the possibility of trademark infringement and unfair competition claims for deteriorating quality.

A Sale Under § 363 Does Not Extinguish or Trump Rights Under § 365(n), Absent Consent

The Court held that a sale free and clear of all liens, claims, and encumbrances under § 363(b) and (f) does not extinguish or trump the rights of parties under § 365(n), absent consent. Little case law exists addressing the interplay of §§ 363 and 365(n), so the Court referenced analogous case law interpreting §§ 363 and 365(h).7

In statutory construction, the specific governs the general. Section 365(h) specifically allows lessees to remain in possession after lease rejection. In comparison, § 365(n) allows the licensees to remain subject to the license agreements for their duration. The Court noted that the specific language of § 365(n) should not be overridden by the more general and broad § 363(f), absent consent of the Licensees.

The Bankruptcy Code allows an interest to be extinguished by a sale with consent of the interest holder. Here, the Court found that the Licensees could not consent, as they were not provided with adequate notice that the potential sale put their rights under the License Agreements at risk. Indeed, the APA and sale documents did not include any specific language placing the Licensees on notice that the sale jeopardized their rights.8 Ultimately, the Judge addressed the consent issue as follows:

The Court posits that the content of the Sale Motion was a calculated effort to camouflage the intent to treat the License Agreements as vitiated without raising the specter of § 365(n) rights. Thus it would be inequitable for this Court to find that the Licensees consented to the termination of their rights.9

Only the Debtors are Entitled to Royalties Derived from the License Agreements

The License Agreements were neither sold, nor assumed and assigned to LFAC, which received no portion of the rights under the License Agreements. Those rights therefore remained with the Debtors, and any post-closing royalties generated under the License Agreements would be owed to the Debtors. LFAC did, however, acquire all accounts receivable related to the business, which would include unpaid, post-closing royalties.

BSL, which offered to purchase an assignment of rights under the License Agreements, could not perform the owners’ obligations because it did not own the Crumbs trademark. Neither could the Debtors — only LFAC could perform under the License Agreements, yet LFAC was not a party to those Agreements. Therefore, the Court found that rejection of the License Agreements would be necessary. But until such time as the Agreements were rejected, all royalties generated were payable to the Debtors until assumption, assignment, or rejection.

Conclusion and Consequences

Bankruptcy courts have, in recent years, looked to protect trademark licensees’ rights from the potentially harsh effects of rejection. The Crumbs Court has continued that trend, affording trademark licensees protections under § 365(n), but only to the extent a court chooses to exercise its equitable powers in bankruptcy. However, the explicit exclusion of “trademarks” from the definition of “intellectual property” in § 101(35A) makes the Crumbs Opinion vulnerable as an authority, as future courts may interpret the definition of “intellectual property” to contain an exhaustive list. Even courts accepting the Crumbs Opinion’s analysis may decline to exercise their equitable power to protect licensees under § 365(n).10

1 11 U.S.C. § 101(35A).

2 In re Crumbs Bake Shop, Inc., et al., Bankr. D.N.J. Case No. 14-24287-MBK.

3 The licensees include: Coastal Foods Baking, LLC; Pelican Bay LTD; White Coffee Company; Uncle Harry’s, Inc.; Mystic Apparel, LLC; and Pop! Gourmet (collectively, the “Licensees”).

4 Bankr. D.N.J. Case No. 14-24287-MBK, Docket No. 288 [corrected version at Docket No. 296].

5 In re Exide Technologies, 607 F.3d 957 (3d Cir. 2010).

6 The Court also noted that there exists pending legislation which will remedy Congress’s omission of “trademarks” from the “intellectual property” definition; though it noted the pending legislation was not dispositive to its decision.

7 Section 365(h) is concerned with lease rejection in bankruptcy and has some similarities in purpose with § 365(n).

8 Only the proposed sale order included any language that would suggest the Licensees rights were being affected, and this language was dismissed by the Court as “a mere ten words, buried within a single twenty-nine page document, which itself was affixed to a CM/ECF filing totaling one hundred twenty-nine pages.” Crumbs Opinion at p.16.

9 Id.

10 The views expressed in this article do not necessarily represent the views of Arent Fox LLP, its attorneys, or its clients.