GENEVA – FEBRUARY 2009 – No.1

4 NON-TRADITIONAL MARKS

GREEN INNOVATION KEEPING 10 AIRPLANES UP AND CARBON OUTPUT DOWN

SALTY SECRETS 18 New Drugs from the Sea Calendar ofMeetings Invitations: well asthosedecidedbytheGeneralAssembly. anddevelopment related issues as agreedto property discussintellectual bytheCommittee, as monitor, ontheimplementationofallrecommendations assess, adopted; discussandreport and develop program awork well asto for further implementationoftheadopted recommendations; States,This session,asdecidedbytheMember isto approve ofthesecond sessionas thereport GENEVA APRIL 27TOMAY 1 Invitations: patent system, asagreed atthe Twelfth SessionoftheCommittee, heldinJune2008. The Committee issuesrelating onvarious willcontinueitswork to patent law andtheinternational GENEVA MARCH 23TO27 Invitations: As requested third bytheAssembly (6 oftheLisbonUnion atitstwenty GENEVA MARCH 17TO20 ad hoc Invitations: GroupWorking andtheIPCAdvanced Level Subcommittee. i.e. theadoptionofresults work, oftheIPCRevision ofapplication),andcontinueitsordinary cy (Procedures andconsisten- andCE405(IPCrevision policy ofrevision andpublicationoftheIPC) The Committee will, inparticular, ofthespecial discussthereport Task Force onprojectsCE404 GENEVA MARCH 16TO20 Invitations: developments onthesubject. and to current policy international tices indifferent anddifferent countries fields, patent andtrademark inthecopyright, industries of IPfinancing(theuseassetsto gainaccessto finance)bydrawing attention to current prac- offices, andchallenges andthewiderIPcommunity, property and industrial oftheopportunities isto raiseawareness Meeting oftheInformation States’The purpose amongMember copyright GENEVA MARCH 10 Invitations: ticular, ofthe1934Act. apossibletermination possibleoptionstowith aviewto reduce oftheHaguesystem, exploring inpar- thecomplexity The meetingwilladdress oftheHagueAgreement, theissueofobsolescence1934Act GENEVA FEBRUARY 24 to theParis Unionand/or and WIPO; andasPermanent Observer Designs. Registration ofIndustrial International Observer and Observer Permanent Observer and Permanent Observer States; and andasPermanent Observer open to thegeneralpublic. certain organizations. certain Committee; theStates membersoftheParis asobservers, and Union;andasPermanent Observer Lisbon Agreement. the GroupWorking willmeetto explore possibleimprovements to theprocedures underthe Committee on Development and Intellectual Property (CDIP),Committee onDevelopment Third andIntellectual Property Session Standing Committee ontheLawofPatents, Session Thirteenth Working Group ontheDevelopment oftheLisbonSystem (Appellations ofOrigin) Forty-FirstIPC Union-Committee Session ofExperts, (IP) Financing WIPO InformationMeetingonIntellectual Property Concerning theInternational Registration ofIndustrialDesigns Informal Consultative Meetingto DiscusstheRelevance oftheLondon (1934)oftheHagueAgreement Act observer organizations, certain organizations. organizations, certain observer As members, theStates membersof WIPO and/oroftheParis other Union;asobservers, As members, theStates members of otherStates; andasPermanentWIPO; asobservers, As members, theStates otherStates membersoftheLisbonUnion.As party observers, All States membersof WIPO and/ortheParis otherStates; andas Union;asobservers, The 15 Contracting StatesThe 15Contracting to oftheHagueAgreement the1934Act the Concerning As members, theStates membersoftheIPCUnionandmemberorganizations ofthe ad hoc observer organizations, certain organizations. organizations, certain observer ad hoc observer organizations, certain organizations. organizations, certain observer The Forum isalso ad hoc observer organizations, certain organizations. organizations, certain observer ad hoc th observer organizations, observer extraordinary) session, extraordinary) www.wipo.int GENEVA, FEBRUARY 2009 CONTENTS

2 TALKING TO THE DIRECTOR GENERAL

NON TRADITIONAL MARKS 4 SINGAPORE TREATY ENTERS INTO FORCE

SMELL, SOUND AND TASTE – GETTING A SENSE OF 5 NON-TRADITIONAL MARKS

3D TRADEMARKS UNDER FRENCH AND COMMUNITY 7 PRACTICE

GREEN INNOVATION 10 KEEPING AIRPLANES UP AND CARBON OUTPUT DOWN

13 CREATOR, ARTIST, SCULPTOR: NICOLAS LAVARENNE p 16 COPYRIGHT IN THE CLASSROOM – MINE, YOURS, THEIRS 18 SALTY SECRETS – NEW DRUGS FROM THE SEA

THE MUSEUM OF COUNTERFEITING, PARIS – 20 A WALK ON THE WILD SIDE

21 THE FATHER OF KARAOKE 22 WELCOME TO THE PUBLIC DOMAIN 24 BOOK REVIEW 25 LETTERS AND COMMENT 26 IN THE NEWS 28 ACCESSIONS

WIPO MAGAZINE ISSUE 2009/1 © World Intellectual Property Organization

Editor: Sylvie Castonguay Acknowledgements WIPO Contributors Susie Chang (Editorial Unit) p. 16 Graphic Designer: Sheyda Navab Jean-François Arrou-Vignod and Marcus Höpperger (Sector of Anuradha Swaminathan (Editorial Unit) p. 21 Nicholas Hopkins (Film and Multimedia Trademarks, Industrial Designs and Cover image Section) p. 13 Geographical Indications) p. 4 Popeye by E. C. Segar Anya Von Der Ropp (Life Sciences Cathy Jewell (Media Relations and and Public Policy Section) p. 18 Public Affairs Section) p. 10 2 FEBRUARY 2009 TALKING TO THE DIRECTOR GENERAL

FRANCIS GURRY took office as Director General of the World Intellectual Property Organization on October 1, 2008, following his election by WIPO’s Member States. The Director General took time out of a packed schedule to talk to WIPO Magazine about his first few months at the helm.

What was your first priority during your first three You mentioned climate change just now. What can months in office? WIPO do about this? The most pressing priority was to agree with our First, it is clear that tackling the threats associated Member States on a new strategic framework and with global warming requires significant invest- a substantially revised Program and Budget for ment in innovation to develop climate-friendly 2009. This was a very intensive process. It involved technologies. Equally, these new technologies re-defining the strategic goals of the Organization need to be diffused rapidly across the economy. in the light of the changing technological, cultur- One practical contribution that WIPO might al and geo-economic environment, and then make, therefore, is to provide an open innovation starting to realign all our programs and resources platform, where companies could disclose their in accordance with those goals. green technologies with a view to research col- laboration on a commercial basis, or to licensing We now have nine new strategic goals. As well as them on fair, reasonable and non-discriminatory covering our work to promote a balanced evolu- terms. Open innovation has useful potential ap- tion of the international normative framework for plication in the field of climate-friendly technolo- IP, to provide premier IP services, and to facilitate gy, because of the complexity of the technologies the use of IP for development, they include a new involved (often multiple technologies go into focus on building respect for IP; on responsive producing a single product), and because of the communication; on developing international IP in- opportunities for greater collaboration which the frastructures; on establishing WIPO as a world ref- networked economy provides. So we are begin- erence source for IP information; and on address- ning to explore with Member States and industry ing IP in relation to global policy challenges, such the possibility of a role for WIPO in this area. as climate change, public health and food security. What do you hope to have achieved by the end of The next task is to bring the structure of the 2009? Organization into line with the new strategic On the internal side, I hope to have completed framework. This is part of a systematic Strategic the first major phases of the strategic realign- Realignment process, which I started in October ment. And to have successfully managed the im- and which will continue throughout the year. The pact on WIPO of the economic crisis. restructuring involves a lot of movement of staff between different programs. It is moving ahead On the external program, I want us to be able to quickly thanks to the impressive flexibility and show real progress in implementing the WIPO forward-looking spirit of staff throughout the Development Agenda. The 45 recommendations Organization. of the Development Agenda contain a set of as- pirations and principles. We are now working to You also highlighted improved communication as translate those aspirations into distinct projects an immediate priority? with clearly defined deliverables and timelines. Yes. I believe that responsive communication with our stakeholders is paramount. As well as intro- Then there is the patent area. We cannot hope, by ducing greater transparency in the consultations the end of 2009, to have solved the problems fac- with our Member States, we have also reorgan- ing the international patent system, which is ized our Communications Division and launched choking under the weight of demand. But I am a major new customer service initiative. The aim is convinced that the Patent Cooperation Treaty to enable WIPO to respond more effectively to (PCT), as the only global patent application sys- the numerous daily requests that we receive for tem, will be part of an eventual solution. In 2009, information and services. therefore, my aim is to agree a road map for the future evolution of the PCT system. 3 Photo: WIPO/Samar Photo: Shamoon

Another distinct area in which I believe that the most urgent telephone global IP community can deliver a very positive messages. The morn- result is in improving access to published works ing’s meetings might for visually impaired persons. We will be working include discussions with with the World Blind Union, the International Ambassadors, or with WIPO Director General Francis Gurry in Geneva. Publishers Association and with Member States in visiting delegations, order to achieve a consensus on a successful about, for example, process for making this happen. capacity-building activities which WIPO is con- ducting in their countries; or with an NGO group More broadly, we need to start the process of on areas of potential cooperation. Next might conducting a health check on the state of the come a strategic planning meeting with my sen- copyright system in relation to the multiple ior managers, in order to review the direction, ac- threats it is facing. tivities and structure of their respective areas as part of the strategic realignment process. What kind of impact do you think the economic crisis will have on intellectual property? If I don’t have a speaking engagement at lunch We are monitoring this carefully, not least as time, I will try to shut myself away for an hour to WIPO is funded almost entirely by the revenue deal with the daily mountain of files containing all from our IP registration and filing services. We the requests, reports and proposals which are have seen some slowing in patent and trademark sent to me. In the afternoon I might have a quick applications in 2008, although growth has so far discussion with members of my Cabinet to run remained positive. through priorities for the week and check on progress. They may also brief me on, for example, Historically, patent filings have tended to dip dur- concerns which staff or Member State represen- ing periods of economic difficulty simply because tatives have raised with them. Various other inter- fewer resources are available for investment in nal and external meetings might follow, covering the innovation cycle. Once the economic cycle finance, or human resources issues, or prepara- improves, patenting activity tends also to recover. tions for the next Standing Committee. In be- That said, economic crises have, in the past, also tween, I might squeeze in a telephone interview been a catalyst for innovation, because of the with a journalist; then maybe a call on one of my need to improve standards of efficiency, to do fellow heads of UN agencies in Geneva to discuss more with less, and to develop smarter business common areas of interest. solutions. As President Obama said in his inaugu- ral speech: “our minds are no less inventive, our And your evenings? goods and services no less needed than they On the evenings where I don’t have an official en- were last week or last month or last year.” So an gagement, or am not heading back to the airport, economic crisis can also mean an opportunity to it is home for dinner with the family – before a final capitalize on intellectual property. assault on the e-mails.

Could you describe a typical day in your life as Director General? No two days have been the same since I took of- fice. But they have all been equally full.

On a typical day, if I am not flying back into Geneva from an official visit, I will make an early start on clearing e-mails. I am not at my best over breakfast, so I tend to avoid working breakfasts if I can. When I arrive at the office I consult with my sec- retary on the day’s schedule and sort through the 4 FEBRUARY 2009 NON-TRADITIONAL MARKS SINGAPORE TREATY ENTERS INTO FORCE

In today’s consumer society, the their packaging, colors per se, tatives of WIPO Member States technical features of products moving images, or specific and observer organizations – has and services are becoming in- sounds or smells, are being in- defined a number of areas of creasingly similar and, thus, eas- creasingly used in marketing to convergence concerning the ily substitutable. A brand that individualize goods or services. representation and description adds emotion to the product or And WIPO has been responsive of non-traditional marks, such as service on offer will often influ- to these developments. 3D marks, hologram marks, po- ence purchasing decisions. sition marks, multimedia marks Getting potential customers ac- Singapore or sound marks. Those areas of quainted with the idea that a Treaty convergence reflect a common specific color, shape, sound, approach by all WIPO Members moving image, taste or smell, In March 2006, a diplomatic to the representation and de- stands for a given brand re- conference in Singapore, which scription of non-traditional marks quires heavy investment in mar- brought together 147 WIPO and provide the first interna- keting and communication. Member States, adopted the tional reference in that area. Trademark registration of these Singapore Treaty on the Law of “new” or “non-traditional” marks Trademarks. Without necessarily For the time being, the number – securing exclusive rights over creating an international obliga- of registered non-traditional these brands – enables busi- tion for the registration and pro- marks remains very low – with nesses to make strategic deci- tection of those non-traditional 3D marks being the most com- sions concerning the use of marks, the Treaty sets out a mul- mon. Non-visible signs – espe- such signs and the develop- tilateral framework for the defi- cially taste and smell marks are ment of brands. nition of criteria concerning the still far from being commonly reproduction of hologram, mo- accepted. But keeping in mind The overwhelming majority of tion, color and position marks the rapid evolution of creative trademarks for which registration and of marks consisting of non- marketing techniques, it is only is sought are made up of either visible signs on trademark appli- a question of time before we one or several words – so-called cations and in trademark regis- see an increase in the registra- word marks – or a drawing, pic- ters. The Singapore Treaty will tions of those signs. Through ture or image – so-called figura- enter into force on March 16, the work of the SCT and with tive marks. But modern trade- 2009, and the Assembly of the coming into force of the mark law is open to other Contracting Parties may work Singapore Treaty, the trademark subject matter being used and out the standards which it wish- community – brand owners as protected as trademarks, provid- es to adopt in respect of non- well as registration authorities – ed that certain conditions are traditional marks. will be better prepared to ad- met. This development simply dress the legal and administra- takes account of the fact that Preparatory work has already tive issues surrounding those signs, which can be used in been carried out by the WIPO types of marks. commerce to distinguish goods Standing Committee on the Law and services, are not necessarily of Trademarks, Industrial Designs limited to words or images. and Geographical Indications Three-dimensional (3D) designs, (SCT). In its last two sessions, such as the shape of goods or the SCT – made up of represen- 5 SMELL, SOUND AND TASTE Getting a Sense of Non-Traditional Marks

If you heard a familiar, comforting sound associ- Representation of ated with a particular kind of tea, would you be sound marks more likely to choose it? How about the smell of freshly cut grass emanating from tennis balls – In the case of sound marks, alternative methods would they make you a winner? Or mint-flavored have emerged for their visual representation: de- tennis balls for your dog – would fresher breath pictions by oscillogram, spectrum, spectrogram not be welcome? Marketing specialists would and sonogram are now being accepted. Such NON-TRADITIONAL MARKS like us to think so, and these are only some of representations must be handled carefully in or- the subtle ways manufacturers get us to recog- der to meet the requirements of individual trade- nize their products. But just how far can trade- mark offices. mark registration be stretched to protect these innovative ideas? In 2003, the Court of Justice of the European Communities ruled in case No. C-283/01 that a Smell is said to be one of the most potent types trademark may only consist of a graphically rep- of human memory, and businesses show increas- resented sound – such as by images, lines or char- ing interest in pairing pleasant scents with their acters – and that its representation must be clear, products. To obtain registration of a smell mark precise, self-contained, applicants must be able to visually represent the easily accessible, in- product’s scent and must show it is distinctive telligible, durable and OHIM Photo: from the product itself. A bottled sample of the objective. The Court This INLEX IP Expertise registered sound mark (CTM smell for example would decay over time and specifically excluded 004901658) may not look like much on paper but it is could therefore not be kept on a trademark regis- written descriptions worthwhile logging on to the OHIM database to check out the actual sound. ter. But how does one represent a smell in a visu- that say: the sign con- al way? Writing down the chemical formula for a sists of the notes making up a musical work; or smell is problematic as it is deemed to represent that it is the cry of an animal; an onomatopoeia; the substance rather than the smell of that sub- or simply a sequence of musical notes. This creat- stance. Any written description of a smell must be ed some confusion as to possible alternative so precise that that particular smell would not be means of representation. confused with any other. In recently defined areas of convergence con- An additional obstacle to smell mark registration cerning the representation and description of non- is that the smell must not result from the nature traditional marks, the WIPO Standing Committee of the good itself. For example, an application by on the Law of Trademarks, Industrial Designs and Chanel to register its well-known No. 5 fragrance Geographical Indications (SCT) agreed that “Offices as a smell mark in the United Kingdom was un- may require that the representation of sound successful on that count – the scent of the per- marks consist of a musical notation on a stave, a fume being the very essence of the product. description of the sound constituting the mark, or However, some smell mark descriptions have an analog or digital recording of that sound – or met the distinctiveness test and been success- of any combination thereof. Where electronic fil- fully registered, such as: a Dutch company’s ten- ing is available, an electronic file may be attached nis balls with the scent of newly mown grass; to the application. However, for some jurisdic- and UK registrations for tires with “a floral fra- tions, only a musical notation on a stave may be grance/smell reminiscent of roses” and darts considered to adequately represent the mark.” with “the strong smell of bitter beer.” The Office for Harmonization in the Internal Market (OHIM), OHIM decided in 2005 (No. EX-05-3) that appli- however, does not agree with the granting of cants could attach a sound file to electronic or the two UK registrations. online trademark application forms – this still applies. The attachment must be in MP3 format, >>> 6 FEBRUARY 2009

Moving images, holograms and gestures

Multimedia production has opened the way for even more non-traditional trademarks: holograms, gestures and motion or moving image marks. Their registration usually requires the use of a sequence of pictures or drawings to depict how the trademark functions.

Motion marks are probably the most common of the multimedia marks. Movie fans are familiar with the 20th Century Fox Film Corporation logo with floodlights trailing back and forth across the sky, but few know it is a registered trademark (USPTO 1.928.424). The Australian tennis player Lleyton Hewitt applied for trademark registration of his “C’mon” gesture, but it seems it was in no way unique. Records of its use by another athlete date back to the 1980s. Photo: WIPO Photo: Photo: OHIM Photo: Photo: UK IntellectualPhoto: Property Office

The VF – Video Future hologram trademark (CTM 2117034) registered by GDS Video.

The EU registered (CTM 1400092) Kraft Foods UK Ltd. registered the Lamborghini moving image this moving image trademark trademark for car doors opening (UK 228003) for chocolate and and turning upward. chocolate confectionery.

must not exceed one megabyte and must not al- 2001-2, “Any manufacturer… is entitled to add the low loops or streaming. Its purpose is to further flavor of artificial strawberries to those products for clarify and support the application. INLEX IP Expertise the purpose of disguising any unpleasant taste that was the first applicant to successfully obtain a they might otherwise have or simply for the pur- registered Community sound mark using this op- pose of making them pleasant to taste… Moreover, tion. Deutsche Telekom has also registered its jin- the taste is unlikely to be perceived by consumers gle as a sound mark under the Madrid Protocol. as a trademark; they are far more likely to assume that it is intended to disguise the unpleasant taste Taste marks of the product…” A similar attempt by N.V. Organon to register an orange flavor for pharmaceuticals was Taste marks may be easier to represent graphical- rejected by the USPTO.1 As the Trademark Trials and ly – the SCT reports that “the graphic representa- Appeals Court pointed out, it is difficult to define tion requirement was satisfied by using a written how taste can act as a trademark when consumers description of the taste and an indication that it only taste goods after purchase. concerns a taste mark” – but the hurdle of dis- tinctiveness is even harder to overcome as are as- As work on non-traditional marks progresses and 1 USPTO, June 14, 2006, sertions concerning functionality. the business world continues to create and mar- In re N.V. Organon ket new types of products, we may see a fascinat- OHIM rejected the pharmaceutical company Eli ing transformation of the world of trademarks. Lilly’s attempt to register the taste of artificial strawberries noting in its decision in case R 120/ 7 3D TRADEMARKS UNDER FRENCH AND COMMUNITY PRACTICE

The following article, by European trademark attorneys FRANCK SOUTOUL and JEAN-PHILIPPE BRESSON,1 compares the interpretation of the requirements of distinctiveness and technical function when regis- tering 3D trademarks at the national level in France with that of the European Community mark. NON-TRADITIONAL MARKS

Compared to more traditional trademarks, three- Only a very limited number of 3D applications dimensional (3D) trademarks are under-used by have become Community marks; most being business, and very few applications for such trade- barred for lack of distinctiveness, marks are made. With the rapid increase in the a hurdle few applicants have number of Madrid system member states in recent overcome. Those who have suc- years – the system now has 84 members – it is an ceeded registered marks with a opportune moment to look at differences in re- particularly high degree of dis- quirements for the registration of 3D trademarks. tinctiveness and/or clearly de-

monstrated long-term extensive Mikkel Bang & Olufsen/ Photo: Hagstrøm Both product shape and packaging are eligible use, thereby acquiring enhanced for trademark registration. French and European distinctiveness in the market. For Community trademark provisions number them example, the European Court of among the figurative signs that may constitute First Instance in case No. T-305/ trademarks; however, such 3D trademarks must 02 considered the transparent not only fulfill the same conditions as traditional bottle used by Contrex® for its trademarks but must also meet additional legal mineral water distinctive due to The Bang & Olufsen loudspeaker model requirements. Distinctiveness and technical func- a combination of factors. Its BEOLAB 8000, an OHIM registered 3D trademark, has a strikingly “dissimilar” shape tion requirements remain the most frequent overall aesthetic look was that is easily remembered by consumers. grounds of refusal of 3D trademarks. This article deemed appealing and con- outlines how these two aspects are handled in sumers easily distinguished its shape from other practice and assesses the strength of monopoly similar goods – thus making it truly specific. of registered 3D trademarks. A Bang & Olufsen loudspeaker BEOLAB 8000 also The distinctiveness test won the battle in case No. T-460/05, because of its unusual shape, its striking design quality and the Lack of distinctiveness is the first ground for re- ease with which consumers could recognize its fusal of 3D trademarks, especially when it comes shape which is significantly different from the to “naked” – containing no words or graphics – norm. The Court ruled that “the shape of the mark shapes or packaging. Community examiners at is truly specific and cannot be considered to be the Office for Harmonization in the Internal altogether common. Thus, the body of the loud- Market (OHIM) are much stricter about this re- speaker is formed of a cone which looks like a 1 Both authors with INLEX IP EXPERTISE quirement than in French practice. pencil or an organ pipe the pointed end of which (www.inlex.com), joins to a square base. In addition, a long rectan- supervisors of the As far as OHIM is concerned, the average con- gular panel is fixed to one side of that cone and LEXVALUE and PHARMINLEX sumer does not identify products or manufactur- heightens the impression that the weight of the Departments, and ers simply by shape or packaging. The more whole rests only on the point which barely touch- reporters for IP TALK closely the shape for which registration is sought es the square base. In that way, the whole creates (www.ip-talk.eu), France resembles the typical or natural shape used for a striking design which is remembered easily.” such products, the more devoid of any distinctive character OHIM will consider it to be. This makes OHIM’s strict approach concerning naked 3D it much more difficult to establish distinctiveness signs can be eased by adding graphic or word el- in relation to 3D trademarks. ements to the 3D shape or package. However, >>> 8 FEBRUARY 2009

some countries have even more stringent rules Nevertheless, even though it could be argued than OHIM. Japan allowed the protection of 3D that the parameters in question are not the only marks in 1997, but the Coca-Cola Company only ones to achieve the desired result, it is clear that recently obtained 3D registration of the Coca- the design of the brick has been developed to Cola bottle after a long, drawn-out legal battle ease interlocking. with the Japan Patent Office. The trademark monopoly The technical function test Right holders who have successfully registered 3D trademarks often benefit from “special” treatment French law and Community Regulations both when it comes to the enforcement of their rights preclude from registration 3D signs whose essen- against third parties. A look at case law could lead tial characteristics perform a technical function. one to assume that such marks have a narrow scope The reason is simple: trademark monopoly on of protection serving only to prevent identical or al- such signs would illegitimately restrict most identical reproduction of the sign. However, competitors trading in identical or sim- the scope actually depends on the balance among

Photo: OHIM Photo: ilar goods that incorporate such func- several factors: the Office from which the registra- tions. Both French and Community tion originates; the Office or court before which the case law consider that technical func- proceeding is brought; and the level of variation, tion must be determined by focusing elaboration and/or aesthetic result achieved com- solely on the mark concerned without pared to that of other similar products. analyzing whether the same result could be achieved through one or sev- A French 3D trademark that is significantly differ- eral different shapes, yet their decisions ent from the natural shape of the product con- on the matter widely differ. The treat- cerned has a greater chance of success against ment applied to shapes of pills is par- opposition or a cancellation action in a French ticularly illustrative. court than would a similar case before OHIM against a Community Trademark. In 2004, the French High Court ruled against registration of the LEXOMIL pill The strict approach applied by OHIM in the exam- shape because the tablet-breaking fea- ination stage explains subsequent rulings at the ture could be obtained with other Community level when assessing the likelihood of shapes. However, the Versailles Court of confusion between 3D trademarks. In one case, Nestle has registered the 3D Contrex bottle as a Community Appeal reversed the decision in 2005, the Board of Appeal denied there being a likeli- mark No. 000922179. ruling that the breakable function and hood of confusion between two trademarks for the overall shape of the LEXOMIL pill bottle shapes, considering that there were suffi- did not fulfill a technical function, thus opening cient differences between the two shapes to place the way for other pill shapes to be registered as the applicant’s mark outside the scope of protec- French trademarks. OHIM, on the other hand, has tion of the opponent’s earlier right.3 repeatedly ruled2 that grooves on a pill simply ful- fill a useful role in ingestion and do not grant the In a similar case, where the Board held that two pill a specific commercial identity, thus barring competing bottle shapes were not confusingly them from registration. similar, it visually studied the two bottles looking at the average distinctiveness of each bottle The French Trademarks Office and courts, as well shape and whether there were significant differ- as OHIM, use a wide-lens approach in performing ences between the marks.4 The earlier mark had a the technical function test. This led the European longish, light filigree look, while the challenger 2 OHIM, Fourth Board of Court of Justice in case No. T-270/06, for example, with its thick, corpulent silhouette gave a more Appeal, November 19, to confirm an earlier OHIM decision concerning bulky impression. The lower part of the earlier 2008, Case No. R the partial cancellation of the 3D Lego brick trade- mark had a regular form, while the lower part of 804/2008-4. 3 OHIM, Second Board of mark: the addition of non-essential characteristics challenger’s mark was irregular and had a specific Appeal, May 14, 2007, R with no technical function was pointless as long curvy form with a thinner middle part. The chal- 1145/2006-2 as the overall shape still served a technical pur- lenged mark contained the word “snipp” whereas 4 OHIM, Fourth Board of pose, i.e. the overall shape of a 3D Lego brick there were no word elements in the earlier mark. Appeal, November 15, 2007, R 1096/2006-4 serves the technical purpose of building no mat- ter how much you vary the height or diameter of On the other hand, some French courts refuse to the studs or increase the projections on the bricks. grant a trademark in order to avoid the protection 9

Protection of shapes in India

This article is an abridged version of the article “Protection of Shapes Under Indian Law” by Mr. ABHISHEK MALHOTRA, DSK Legal, India, first published in the INTA Bulletin Vol. 63 No. 13, July 15, 2008.

The Indian Trade Marks Act includes the shape of goods in the definition of trademarks, but the scope of protection is unclear, as statutory protection for the shapes of goods was only intro- duced in 2003. A more interesting question is whether the shape of goods may be protected under the principles of design law or trademark law, especially in India where the definition of “design” under the Designs Act, 2000, excludes trademarks.

A decision by the Delhi High Court – though pronounced before the Act came into force – pro- vides some assistance on the seemingly overlapping protection. In Corning Inc. & Ors. v. Raj Kumar Garg & Ors., 2004 (28) PTC 257, the judge of the Delhi High Court clarified the fundamental dis- tinction between a trademark and a design: NON-TRADITIONAL MARKS

[A] “trademark” signals to the mind, the source or identity of the producer/manufacturer of the article, whereas a “design” appeals to the eye and attracts the consumer/purchaser. A “trademark” may also be attractive and appealing to the eye but it should be directly relatable to the producer/manufacturer of the goods whereas the “design” may be merely appealing or attractive to the eye and need not give any indication to the consumer/purchaser about the identity of the manufacturer or producer of the article.”

The court also held that a design protects only the features of shape and configuration. This dis- tinction is significant in view of the inclusion of shapes in the definition of trademarks under the Act, because it may be concluded that whereas trademark law protects the shape of goods, de- sign law merely protects the features of such shapes.

With regard to the issue of distinctiveness, there is no case law in India relating specifically to shape marks. However, pronouncements on product packaging or trade dress may provide guidance on the path that the courts are likely to take when faced with such an issue. It has been consistently held that trade dress cannot be inherently distinctive, and while a claim of passing off is available, even in respect of an unregistered design, the plaintiff claiming passing off has to prove that the trade dress has acquired secondary meaning or reputation in the mar- ket in relation to the trade dress. Such reputation need not be based on use in India alone but may also be in the form of trans-border reputation of a trademark that has traveled into India. Such cases have also indicated that the amount of evidence required to establish reputation in relation to a shape mark is likely to be more than that required for a word mark.

of a genre. While regarding as distinctive the 3D features of a particular sign, the choice between a trademark for the shape of a cylindrical foie gras national or Community trademark, designated di- lollipop, the Paris Court of Appeal on June 25, 2008 rectly or through the Madrid system, impacts on denied claims of trademark counterfeiting by a both the possibility of obtaining registration and product consisting of foie gras half scoops on a on the scope of protection that can be granted stick. For the Court, applying the trademark right when bringing a proceeding. In that context, un- would have involved protecting a genre, whereas fair competition constitutes a useful, comple- the specific shapes and look of the products in- mentary basis of action. volved had sufficient overall differences to pre- vent any possible confusion.

A strategic choice

The Community and French approaches to 3D trademarks dictate the trademark strategy of right holders. Depending on the elements and 10 FEBRUARY 2009 KEEPING AIRPLANES UP AND CARBON OUTPUT DOWN

It seems far-fetched, almost inconceivable that a on Climate Change (IPCC) report on Aviation and simple shrub, jatropha curcas, and plain algae, Global Atmosphere. GREEN INNOVATION could offer a viable alternative to oil – that black gold on which we have become so reliant. But Steps taken by the industry to mitigate its envi- within the next few years this could become a re- ronmental impact have generated significant ality for the air emissions reductions and translated into sizeable transport sector. cost savings. Since 2004, the industry as a whole

Faced with volatile has saved some 59 million metric tonnes of CO2 –

Photo: Terasol Energy Terasol Photo: energy markets and equivalent to US$12.2 billion in fuel costs. In 2008

the urgent need alone, 15 million tonnes of CO2 were saved. to cut greenhouse gas emissions, the Progress in airline industry is fuel efficiencies fully engaged in the search for vi- Today’s aircraft are 70 percent more fuel-effi- able fuel alterna- cient than in the 1970s. Jatropha plant tives which, it is widely believed, will come on Since the late 1990s aircraft operations (land- stream within 3 to 5 years for jatropha-based fuels ing, routing, etc.) have become 20 percent and within 10 years for algal-based fuels. more fuel-efficient and fuel efficiency is set to improve annually by 1.3 percent. Air transport offers an interesting example of an Hydrocarbon emissions have been cut by industry that is embracing technological and de- 90 percent and oxides of nitrogen have gone sign innovation to secure an economically sus- down by 50 percent. tainable and carbon-free future.

A united approach Biofuel test flights

Air travel is central to the global trading system, re- Access to fuel that is affordable, clean and effi- sponsible for transporting 35 percent of goods (by cient is an important element in reducing green- value) of international trade, and over 40 percent of house gas emissions. The industry is actively international tourism traffic. A global employer, it steering efforts to identify and develop viable al- directly generates 5.5 million jobs and contributes ternatives that are equivalent to, or better than some US$408 billion to global GDP. Aviation cur- standard jet fuel, that are renewable, and that rently accounts for approximately 13 percent of have minimal impact on biodiversity. IATA, which global transport emissions, equivalent to 2 percent is committed to using 10 percent alternative fuels

of global carbon dioxide (CO2) emissions. by 2017, believes that biofuels offer the most promise in reducing aviation’s carbon emissions. Giovanni Bisignani, Director General of the In December 2008, Air New Zealand made avia- International Air Transport Association (IATA), be- tion history when it tested a passenger jet pow- lieves that “no other industry is as united in its ap- ered by a blend of standard jet fuel that derived proach” to reducing emissions. The industry has a from the plum-sized jatropha fruit. In January “firm and strong” commitment to environmental 2009, Continental Airlines and Japan AirLines also responsibility and the IATA vision is to achieve undertook test flights using jatropha plant-based carbon-neutral growth on the way to a carbon- biofuels. These test flights are part of a collabora- free future by 2050. Aviation is the first global tive, industry-led effort – under the aegis of the transportation sector to try to understand the en- Sustainable Aviation Fuel Users Group – to accel- vironmental impact of its operations, commis- erate the development, and demonstrate the via- sioning in 1999 a special Intergovernmental Panel bility of, sustainable biofuels. 11

The technology process used to convert plant- Improving the plant variety based oils into fuel was developed by Universal Oil Products (UOP) – a subsidiary of Honeywell. The jatropha oil for the Continental test flight was UOP has been developing technology for fuel sourced by the New York-based Terasol Energy production for 95 years and holds over 2,600 whose President, Sanjay Pingle, reckons that the patents; it uses the Patent Cooperation Treaty research is in its early stages: “Lots more work (PCT) to protect its technology internationally. needs to be done on improving yields, disease re- The biofuel conversion technology is based on sistance, synchronization of flowering and fruit- traditional hydroprocessing technology used in ing.” He is also aware of the “need to be careful that refineries around the world for more than 40 fuel crops are sustainably grown. We cannot allow years. This means that integration into existing re- them to be grown in fineries will be quick, simple and cost effective. areas that are used for UOP plans to start licensing its technology to fuel food or to be a cause producers in the first half of 2009, bringing com- for deforestation.” mercial production one step closer to reality. Terasol Energy works Photo: Carbon Capture Corporation Carbon Capture Photo: Advantages of with plant breeding jatropha biofuel companies to get vari- eties of seeds that it The higher energy content of this biofuel mix can adapt and devel- means that less fuel is needed per flight and its low- op for its purposes. er specific gravity offers advantages over many According to Mr. Pingle, standard jet fuels. It is an excellent “drop in” replace- “over time, if trials are Carbon Capture ment for standard jet fuel, avoiding the need to successful, we will register new varieties of jat- Corporation (CCC) algae make expensive modifications to the existing fleet. ropha that we can develop as Terasol materials.” production ponds. The company believes that At present some 1,000 hectares of jatropha are technological These second-generation, plant-based biofuels under cultivation in Brazil on land that would not breakthroughs in do not compete with food production or fresh otherwise be used for agricultural production. effective pond design and processing water resources nor do they contribute to defor- techniques will bring estation. Unlike biofuel crops such as soybeans Intellectual property is an important component production costs down. and corn, jatropha needs little water or fertilizer, of Terasol Energy’s business strategy: “We need to can be grown in harsh, non-fertile environments, be able to ensure that we are licensing-in the best and is drought and pest resistant. Each seed pro- possible plants. This would be hard to do if the de- duces 30 to 40 percent of its mass in oil and velopers/breeders did not have strong intellectual therefore has a higher yield per acre than many property protection. Subsequently, it’s important other plant oils (one hectare (2.47 acres) of jat- that we are able to maintain competitive advan- ropha produces approximately 600 gallons of oil). tage through the intellectual property generated These plant-based fuels are considered to be car- as we adapt and develop these plants for cultiva- bon neutral as any CO2 emitted during produc- tion.” The main focus of Terasol Energy’s IP devel- tion and use is offset by the plants’ absorption opment is on “the varieties and hybrids of the during growth. plants that are used and the processes developed for their sustainable but efficient cultivation.” Test results show that a 50/50 blend of standard jet fuel and fuel from jatropha, and other plant- Mr. Pingle believes that jatropha oil has the po- based oils, meets, and in some instances exceeds, tential to radically change the energy landscape industry technical specifications. According to and that it is a win-win solution with the potential UOP, “the fuel that our technology produces is vir- to help counter climate change, lessen depend- tually indistinguishable from kerosene-based jet ence on fossil fuels and generate economic and fuel. Both are hydrocarbons. The only difference is social benefits. “We are facing an increasingly dif- source.” UOP’s goal is to produce fuels that per- ficult battle to combat climate change. While form as well as or better than their petroleum- there are no silver bullets, all the efforts we can based alternatives and that leverage the existing make to reduce our emissions of greenhouse gas- fuel infrastructure and fleet technology to lower es help us stabilize the quality of the environ- capital costs and simplify adoption. UOP expects ment. Developing sustainably grown fuel sources production levels to reach the hundreds of mil- from crops will not only have an impact on fossil lions of gallons per year by 2012. fuel consumption but also on the economies of >>> 12 FEBRUARY 2009

developing countries by providing additional em- will bring production costs down. IP protection is ployment opportunities in rural areas and in re- expected to become increasingly important to ducing dependence on imports.” his company’s business strategy: “So far, we have chosen to be very open with our efforts and have Algae as green fuel only secured limited patent protection. In the fu- ture, we plan on focusing more on the creation of Algae represent another promising alternative fu- intellectual property as a way to create value.” It is el source. Bernard Raemy, Executive Vice CCC’s key to generating the investments required President, Carbon Capture Corporation (CCC), is for continued research into biofuels. convinced that within a decade algal-derived bio- fuels could become a key component of trans- Facing the challenge portation fuels, including for aviation. GREEN INNOVATION Although global biofuel production tripled be- Algae promise enormous potential as a biofuel tween 2000 and 2007, rising from 4.8 billion gal- source. There are an estimated 100,000 known lons to some 16.0 billion in 2007, it still only ac- species around counts for less than 3 percent of the global the world with transportation fuel supply. While much remains hundreds of new to be done before green crude becomes a main- species identified stream fuel option, the groundswell of interest in each year. They identifying, developing and testing these alterna-

Photo: Carbon Capture Corporation Carbon Capture Photo: produce 50 per- tives demonstrates a growing commitment to cent of the mitigating the causes of climate change. world’s oxygen and are consid- Significant levels of investment are required to ered the most ef- fund the research needed to enable the techno- ficient organisms logical breakthroughs that will make plant-based Algae can produce on earth, because of their rapid growth rate (some biofuels a commercial reality. A balanced IP sys- 100 times more vegetable oil per acre species of algae can double their biomass in a tem is a proven and practical tool. It has an im- per year than soy day) and their high oil content, which in some portant contribution to make in generating the beans and 10 times species accounts for over 50 percent of their mass. breakthrough technologies and the necessary in- more than oil palm. “Algae can produce more biomass and more bio- vestments in biofuel research and development fuel molecules much more efficiently in time and as well as in facilitating the widespread diffusion space than any terrestrial plant,” says Greg Mitchell of these technologies. of the Scripps Institute of Oceanography, University of California, San Diego (UCSD). He con- Climate change and its impact on human society tinues, “For example, algae can produce 100 times represent perhaps the biggest challenge of the more vegetable oil per acre per year than soy 21st century and technology, innovation and cre- beans and 10 times more than oil palm.” ativity will play a key role in determining our abil- ity to manage it effectively. The response of the According to a study1 commissioned by CCC, which aviation sector, its commitment to innovation grows algae in ponds for biofuel research in and its drive to cut harmful emissions and to California’s Imperial Valley desert, “microalgal bio- achieve carbon neutrality is an encouraging ex- mass production offers many advantages over con- ample of what is being done and what promises ventional biomass production technologies includ- for the future. ing higher yields, use of otherwise non-productive land, reuse and recovery of waste nutrients, use of

saline or brackish waters, and reuse of CO2… and 1 Authors: Professors D.E. offers potential for greenhouse gas avoidance.” Brune (Clemson University), T.J. Mr. Raemy acknowledges that a string of chal- Lundquist (CalPoly), J.R. Benemann (Benemann lenges “with algae harvesting, dewatering, drying, and associates) lipid extraction and conversion” lies ahead and that “coordinated research efforts… are required to bring research from the lab to the field.” He is confident that technological breakthroughs in ef- fective pond design and processing techniques 13 CREATOR, ARTIST, SCULPTOR

Biodata – Nicolas Lavarenne

Born: October 2, 1953, Chamelières, France Education: Technical Baccalaureate in mechanical design Exhibitions: Dozens across Europe, the Middle East and North America

Photos: WIPO/S. Photos: Castonguay Recognition: 1998 – Public Prize, Antibes; 1993 –First Prize Sculpture, Tende; 1993 – First Prize Sculpture, Beaulieu sur Mer; 1990 – Public Prize, Nice; 1987 – First Prize Sculpture, Brignoles; 1984 – Public Prize, Nice

One late summer day, the WIPO Magazine and WIPO Multimedia team loaded up cameras and equipment and headed out to interview the sculptor Nicolas Lavarenne in Seyssel, France, a remote mountain village which once marked the border between France and Italy. We almost missed his workshop: a run-down building, hid- den behind a grocer’s parking lot. “I chose to do manual work. For ten years I sculpt- ed decorations for furniture. Then one day I was But on crossing the threshold, we entered Ali doodling as usual when I made a little drawing Baba’s cave. Mr. Lavarenne’s art – wood, plaster, and decided to sculpt it in wood. When I finished wax and bronze sculptures in various stages of I looked at it and thought ‘What is this? What use progress – was everywhere: on the floor, workta- is it?’” Until then, Mr. Lavarenne had always sculpt- bles and shelves, and hanging from the ceiling, ed on order for pay, precisely following the in- walls and staircases. There were even sculptures structions he was given. He had never even hanging from sculptures. A motorcycle, hand- thought to create his own designs, much less drawn doodles, posters from exhibitions and oth- sculpt them. Creation was a strange notion to er objects littered the room. We did not know him. “That day, I started to ask myself questions where to turn, what to look at first. We wandered about art. It completely threw me. It changed my from one object to another fascinated and eager life and reconciled me with life. So I started to to find out how such a slight, self-effacing man sculpt when I was 23, but I did not become a could have created such works. Our cameras sculptor until I was 33.” turning, he told us his story. That was the day that “sculpture fell” on Mr. “Sculpture fell on me” Lavarenne – and proved a hard master. Self- taught, he had no precise idea where he was go- To hear Mr. Lavarenne tell it, he was walking ing; progress was by trial and error. “There were around, minding his own business, when moments of despair and loneliness.” He contin- “Sculpture ‘fell’ on me.” He cannot otherwise ex- ued to sculpt wood but was unhappy with the re- plain it. His father was an oil painter, but Mr. sults. Wood necessitated joints, was dense and Lavarenne did not have that calling. He studied had to remain thick in places where he wanted mechanical design and worked for a few years in long, lean lines. To make ends meet, he sculpted the motorcycle industry before getting bored. “I mannequins for high-street stores, discovering asked myself ‘What am I good at? What do I like plaster and wax. He perfected his technique, doing?’ Looking back, I realized I could draw, I found new mediums. When he made his first could do whatever I wanted with my hands.” works in bronze, he had found his element. >>> 14 FEBRUARY 2009

“I try to be a sculptor, and at times reproach myself that it is all I am.” Photos: WIPO/S. Photos: Castonguay

“Sculpture is a presence” conscious of what they are doing; they just keep going while his mind is occupied elsewhere. When Mr. Lavarenne had no difficulty defining sculp- he hangs up, he stares at the result. It might be just ture. “For me a sculpture is an object that tries to a scribble, but becomes a two-meter bronze sculp- inhabit a space, not just occupy emptiness. When ture, soaring into the sky. For Mr. Lavarenne, “inspi- one arrives in a place that has a sculpture, it must ration is a form of absence.” have presence. It is that presence that is impor- tant. Sculpture is a presence – a presence, if pos- In an open air shed at the bottom of Mr. Lavarenne’s sible, with an expression.” garden, white plaster dust billowing in our faces, we watched as he worked on the torso of a sculp- “I often identify with my sculptures. They express ture. “When I sculpt it is laborious. I am looking for my sensitivity. I am part of them, they tell me my something that doesn’t exist. I am seeking to story. But art is a mirror and each viewer will find build in space a volume that exists only in my in an artistic expression what he or she brings to mind and on a little bit of paper. That volume it. He identifies himself with the work in one way must be visible from all angles, one must be able or another. If he does not, the work does not cor- to go around a sculpture and it must be interest- respond to his sensitivity.” ing to look at from all angles. I can be working on a face and see something coming out of it that I When people tell Mr. Lavarenne the emotions or find interesting. I turn it a bit and oh… the profile stories they feel reflected in his works, it rarely is a disaster. I rework the profile and give it a corresponds to his experience during the creative three-quarters turn and ugh!… I rework that an- process. However, when he meets “someone who gle then look at the face again… oh, no! ” tells me exactly the same story that the sculpture I created told me, then I tell myself our sensitivity “By the time it is done I am sick of it. I have done is identical. It feels like I am meeting my alter ego so much work on it and I can only see its faults. It and it sends shivers down my spine.” takes me a month or two to digest and accept that it is not perfect. I like to see them go so that “Inspiration I can create others, make another dream into re- is a form of absence” ality. The only sculpture that interests me is the one I have not yet created.” Asked about his inspiration, Mr. Lavarenne ges- tures towards a tiny corner room with windows “I cannot distance myself from my sculptures, but looking into the workshop. There we find all kinds when I look at my work I see quite a realistic, of small drawings, hundreds of them. Mr. anatomically correct, human body and this body Lavarenne says he can sit there for hours, days, is launched into the air, or sent flying, by poles weeks drawing and never coming up with any- which look similar to the lines of force used in thing. Then, one day the phone will ring and while comic strips. The poles lift the sculpture from the he is talking, his hands will keep moving. He is un- ground, symbolically lifting it from anything solid 15 “I sculpt first of all for myself then I hope that it will touch others, bring me into communication with them. My greatest pleasure comes when others feel touched by my sculptures.”

and material, making it lighter, almost virtual, un- able to be touched. It is the paradox of the sculp- tor: bronze is very heavy and yet it flies.”

“You’re the one who made these?”

When Mr. Lavarenne started exhibiting his work, Bondier / Courtesy: Pierre NicolasPhoto: Lavarenne fans were surprised when they met him. “People would exclaim, ‘You’re the one who made this!?’” He most definitely is. He marks each piece to make sure his authorship is recognized and numbers them so that copying can be detected. Though Mr. Lavarenne is not too preoccupied with the copyright process, it does worry him when he catches a glimpse of his work on camera, in books and magazines and he does not even receive an acknowledgment. “I think that at the very least the name of the author should be cited.” “Nobody asked me to do it”

A copyright collective management society regu- “I am an artist, I am lucky to be able to live from larly sends him checks, but he is not too sure my work. I love the creative side, but there is a what for. He is happy that the process works and heavy administrative side. If I don’t go out and tell thinks he should probably be more involved, but people what I am doing – nobody asked me to do sculpture leaves little time for other activities. His it – no one would know that I shut myself in that energy is focused on creation. He highlights for us workshop.” the obvious difficulties of copying his work: the size, weight and bulkiness and the price of the As our cameras followed Mr. Lavarenne around raw material. Bronze is quite expensive. He also his workshop, he stopped face to face with a outlines the strict French legislation that regu- Nubian figure. He studied her perfect features, lates his work (see box). then reached up with both hands and pulled off her head. We gasped… then remembered she He does decry the lack of education in the school was not real, only a wax trial, one of his creations. system on copyright and on how to use it to So our interview ended. Locking up behind us, make one’s living. Sometimes students come and Mr. Lavarenne jumped on a battered old scooter, stare through his workshop windows. He says he waved goodbye, calling out that he was heading * See Nicolas Lavarenne wants them to come in and see and know that out for a dip in the lake before sundown.* on video at they too could do something like this. “Why did www.wipo.int/multimedia/ someone not tell me when I was in school that I en/public_outreach/webcast/ could create and live from my works?”

Is it an original?

Sculptors in bronze, like Nicolas Lavarenne, are authorized under French law to make only 12 originals of each sculpture. Each must be numbered: eight in Arabic numbers and four – the so-called “épreuves d’artiste” – in Roman numbers. Any foundry that does not follow this strict directive is not considered to produce originals but reproductions, whether they make 13 copies or 300.

Mr. Lavarenne numbers his pieces, 1/8 – for the first of eight – and so on. He works with a reputable foundry and molds are destroyed once the originals are produced. Mr. Lavarenne has had various offers to make reproductions which he has categorically refused. 16 FEBRUARY 2009 COPYRIGHT IN THE CLASSROOM Mine, Yours, Theirs

Do elementary school students have any interest in copyright? What would be the right age to address them on the issues? Is there a playful and educational way of broaching the topic with them? To get the answers, the WIPO Communications Division visited the International School of Geneva to lead classroom sessions underlining the importance of copyright. The first Copyright in the Classroom lesson, held in 2007, was presented to 8 and 9 year-old students, the second, in December 2008, to 11 and 12 year-olds.

Copyright in the Classroom, prepared in consulta- covers, DVDs, video games, etc., related to a sin- tion with the school’s teachers and librarian, is a gle, well-known work to the corresponding eco- lesson plan based on the WIPO publication “Learn nomic right of the original author of the work from the Past, Create the Future: The Arts and (translation, adaptation, interpretation, etc.). Copyright.” The main lesson covers the basic con- cepts of works and authors, moral and economic The students – who were just learning to write re- rights and the different symbols and notifications search papers with bibliographies – made the link that signal to third parties that a work is copy- between authors’ rights and the recognition they righted or otherwise protected by intellectual give to authors in their citations. property. In response to questions posed by stu- dents, piracy issues were also covered. The use of Having identified the rights of the authors of their modern classroom technology (an interactive favorite works, the students learned to recognize Smartboard) allowed the presentation to be ani- their own roles as authors who produce creative mated and interactive. works over which they – like all other authors – hold copyright. They were shown how to sign and In the classroom date their works and to use the copyright symbol.

The day before the lesson, the teachers talked to During the lessons, the students raised many the students about works of art and their impor- questions: tance, and asked them to bring their favorite Is it OK to modify music? works (books, DVDs or CDs) to school the next Are we allowed to sell secondhand books? day. At the start of the lesson, the different types How do you get permission if the author is of artistic expression and their supports were re- dead? viewed and students were asked to identify the Who gets the money when the author is different types of artistic expression contained in dead? the works they had brought and name their au- What happens once copyright runs out? thors. Thus, students recognized that several artis- tic works can be contained in a single support, for Providing even such a brief introduction to copy- example, a book contains the written work but al- right in a one-hour class was a tight fit. What so cover illustrations and photographs, all of would they retain? which are often produced by different authors. Books, DVDs and even a painting went back and Lessons learned forth across the room as students excitedly iden- tified the different works and their authors. The feedback from students and teachers made it clear that young students are interested in copy- Through a series of leading questions, the stu- right issues. It also indicated that the best time to dents themselves listed all the different rights teach basic copyright concepts – authors, their that authors have in relation to their works. The rights, the reason for copyright – is when students students were introduced to the official vocabu- are around 8 to 9 years’ old. By the time they are 11 lary of these moral and economic rights and en- to 12 years’ old, students are ready to learn about, gaged in an interactive exercise to ensure their and are interested in, more complex issues such as understanding of them. Using the Smartboard, downloading, piracy and the public domain. students were asked to match pictures of book 17

WIPO materials for teaching IP in the classroom

Teachers have remarked that the WIPO comics are “fun and useful” in explaining IP concepts in their classes and that their own IP knowledge was based on what they had learned in the comics. As well as the comics, other WIPO materials that could be used in the classroom include:

The teachers’ feedback showed that the students there is room for improvement in copyright educa- thought the information was important and use- tion in the classroom. Children need to be shown ful – especially the part about copying music and why they should respect the rights of others and to films from the Internet. The students found the ar- realize that they also are concerned as they might guments against illegal downloading from the one day be the ones making a living and providing Internet convincing. Some of them had gone for their families thanks to copyright. home and discussed what they had learned with their parents and siblings. The teachers thought it The International School of Geneva plans to important that the students had made the con- distribute and promote the Copyright in the nection between what they had learned and writ- Classroom comprehensive curriculum among ing bibliographies and footnotes – one of their educators worldwide through the website and goals being to instill in students a sense of aca- international conferences of the International demic integrity. Baccalaureate (www.ibo.org/) Primary Years Pro- gramme (PYP), a trans-disciplinary program of in- The students also had comments about the les- ternational education. sons: they had enjoyed the interaction and wished there had been more, and they thought Through outreach efforts such as Copyright in the the student packs were an excellent idea. Classroom, improved and refined with each new However, some of the 10 and 12 year-old experience, WIPO hopes to build a network of ed- students thought the lesson – its language and ucators who can develop, share and adapt the content – was pitched for younger students. lesson plans in their classrooms. This experience shows that the materials must be tailored to each Building a network age group to most efficiently reach students of different ages and backgrounds. Keeping in mind the comments of the sculptor Nicolas Lavarenne (see page 13), it would seem 18 FEBRUARY 2009 SALTY SECRETS NEW DRUGS FROM THE SEA

Scientists the world over are searching for the next wonder drug that may cure cancer or treat tubercu- losis. DOLORES GARCÍA GRÁVALOS, the author of this article, is cited as co-inventor on the US patent for Kahalalide F,1 a compound derived from a sea algae, currently in phase II clinical trials for the detection of prostate cancer.

The discovery of Sponges became the focus of many studies after penicillin in 1928 the discovery, in 1959, that some produced active triggered a sys- antimicrobial substances. Research soon revealed

Photo: PharmaMar, SA PharmaMar, Photo: tematic search for that other invertebrates, such as tunicates, ascidi- other terrestrial ans, echinoderms, bryozoans, corals and molluscs, micro-organisms produced similar substances. Biologists and that could be chemists worldwide began searching for natural used in new an- products of marine origin, leading to a boom in tibiotics, leading marine bio-prospecting – the search for aquatic to the discovery organisms for the research and development of of drugs such as new therapeutic products. The discovery in the streptomycin, 1980s of various marine-derived compounds with Colonies of neomycin, chlorophenocol and chlorotetracyclin. the ability to inhibit cell culture growth stimulated Ecteinascidia turbinata, the species from For many years, research focused on terrestrial the interest of the pharmaceutical industry. which Yondelis® plants and micro-organisms, mainly because speci- is derived. mens are easy to obtain. But a growing proportion There are several phases in marine product re- of today’s promising pharmaceutical research fo- search: specimen collection; establishing taxono- cuses on the sea, where marine organisms have my; extracting possible active molecules; using evolved biologically unique molecules. screening techniques to evaluate therapeutic ac- tivity; identifying and isolating the structure re- Life began in the sea, and three-quarters of the sponsible for the activity; and using organic syn- Earth’s surface is covered by water. Innumerable thesis to ensure a supply. Patent applications are organisms, displaying rich biodiversity, populate immediately filed for promising molecules. These the ocean depths. There are extremely diverse molecules are then tested and, if the results are species of invertebrates – fixed or sessile – many in positive, studies are carried out on human sub- plant form and others capable of slow, primitive jects in clinical trials. Once this last phase has movement. These invertebrates possess no physi- been completed, the product is registered as a cal defenses such as protective shells or spines; in- new drug and brought to market. stead, they have developed biologically active molecules – secondary metabolic substances – Treatment for soft that they use to attack prey or defend their habitat. tissue sarcoma The fascinating variety of marine organisms hints at a myriad of new possibilities for drug discovery. Yondelis®, the first treatment for soft tissue sarco- ma to be released on the market in 30 years, of- Exploration of the sea and its organisms is still at fers an excellent example of the kind of drugs a relatively early stage. Although the oceans con- that can be developed through marine organism tain much greater biodiversity than is found on research. PharmaMar, a Spanish biopharmaceuti- land, efforts to exploit this biodiversity by identi- cal subsidiary of the Zeltia Group, was established 1 US patent 6011010 fying new chemical compounds have hardly be- in 1986 with the primary goal of investigating gun: at present, there are some 11,000 marine- marine resources for new active ingredients that derived natural products compared with more could have an application in the treatment of than 155,000 natural, terrestrial products. cancer. The company’s pioneering research in 19 this area was rewarded in 2007, when both the the treatment of multiple European Medicines Agency (EMEA) and the myeloma and acute lympho- European Commission authorized the marketing blastic leukaemia. of Yondelis (trabectedine). The agent is the first SA PharmaMar, Photo: marine-derived anti-tumoral drug developed by Bryostatin was discovered at a Spanish company. Its approval confirms the sea’s Arizona State University, where potential as a source of new drugs. researchers isolated it from the bryozoan Bugula neritina. The The drug was derived via extraction from the as- first clinical trial was conducted cidian Ecteinascidia turbinata (popularly referred to by the US National Cancer as sea squirt). The need to collect large quantities Institute (NCI). It was necessary of ascidian from the sea to isolate active ingredi- to collect 13 metric tonnes of the ents led to the development of mariculture tech- organism to derive 18 grams of the compound. Ecteinascidia turbinata niques and organic synthesis of the product. The Bryostatin is being developed by GPC Biotech in drug can now be obtained via hemi-synthesis Germany and is in phase II of clinical testing as a from cyanosafracine, a metabolic substance of treatment for esophageal cancer for which it was the bacteria Pseudomonas fluorescens. granted FDA orphan drug status in 2001. It has fur- ther served as a model for the preparation of Ascidians (Ascidiacea) are benthic invertebrates many synthetic analogues. that live at the bottom of the sea in solitary or colonial forms. They belong to the class of tuni- Numerous bioactive peptides have been derived cates, so named because their body wall secretes from the sea hare Dolabella auricularia, including a covering, or tunic, composed of a cellulosic sub- the anti-tumoral dolastatin 10, discovered at stance called tunicin. The ascidian Ecteinascidia Arizona State University. Even though this com- turbinata is found in the tropical and sub-tropical pound, which is currently undergoing phase II Atlantic, from the Mediterranean coast to north- clinical trials, has shown insufficient activity ern Brazil and the Caribbean. The species is pres- against various tumors, it has served as a model in ent in all coastal ecosystems from inter-tidal beds the preparation of several synthetic analogues to outer reefs. under development by different companies and research centers, some of which have entered the Other marine-derived clinical research phase. products Kahalalide F, a cyclic depsipeptide, is produced by Other pharmaceutical companies – such as Novartis, algae of the Bryopsis genus, albeit in minute quan- Aventis, Eli Lilly, Inflazyme Abbott, Wyeth and Taiho tities (5 mg derived from 3 kg of algae). A more Pharmaceuticals Co. – have marine-derived ther- adequate source can be found in the sea mollusc apeutic products in the pipeline. The examples Elysia rufescens, which feeds off algae, concentrat- that follow concern products currently in the clin- ing the compound (2.1 g derived from 216 g of * The orphan drug ical research phase. mollusc). This compound, which has already been designation allows a patented, is currently in phase II clinical trials for pharmaceutical Didemnin, the first marine compound subjected the detection of prostate cancer. company exclusive to phase II human clinical trials for the treatment marketing rights for the of certain cancers, was isolated by the Rinehart Despite the potential of marine organisms as a drug for the indicated Group at the University of Illinois from the tuni- source of bioactive compounds, several chal- treatment in the US for cate Trididemnum solidum. It proved so toxic that lenges remain. The regulatory framework for ac- seven years following it was rejected as a therapeutic drug source. cess to and use of marine genetic resources from marketing approval by Nevertheless, its development laid the founda- the high seas is unclear. And, as the examples of the FDA. The designation tion for large-scale cultivation and extraction of Yondelis and Bryostatin show, the difficulty in also enables the marine organisms, which proved essential for the dealing with these organisms is the enormous company to apply for development of other drugs from the sea. amounts of raw material needed to yield usable research funding, tax Didemnin has now been replaced by aplidin, quantities of compounds. This problem, in turn, credits on certain manufactured by PharmaMar. Aplidin is obtained has led to advances in mariculture techniques research expenses and from the tunicate Aplidium albicans and is struc- and organic synthesis. a waiver from the FDA’s turally quite similar to didemnin but less toxic. application user fee. Aplidin, currently in phase II of clinical develop- ment, was granted orphan drug status* by the US Food and Drug Administration (FDA) in 2004 for 20 FEBRUARY 2009 THE MUSEUM OF COUNTERFEITING, PARIS A Walk on the Wild Side

Seen the Eiffel problem is still with us. It is esti- perennial problem, often con- Tower? Floated mated1 that 7 to 10 percent of taining no, or insufficient, active down the Seine? global trade derives from coun- ingredients or even incorporat- Visited the Louvre? terfeits, costing the world econo- ing toxic elements. It is estimat- 2 © Musée de la contrefaçon And now search- my around US$ 492 billion a year. ed that they make up from 10 to ing for a more over 30 percent of the market in esoteric Parisian Throughout the Museum, au- developing countries. destination? thentic goods are displayed with Then look no their corresponding imitations – The Museum recently opened a further than the obtained following customs new wing, dedicated to copy- Original Giacometti compact and seizures or court judgments or right crime. Its exhibits range bronze sculpture (left), beautifully housed Museum of settlements – to highlight the dif- from fake statuettes of Rodin, Dali lengthened by counterfeiters (at the Counterfeiting. Occupying the ferences between genuine prod- and Giacometti – often showing stomach, paws and tail) ground floor of an elegant, 19th ucts and their illegal and sub- counterfeiting techniques, such to compensate for century building – used as a set- standard doppelgangers. as the application of acid fol- the reduction in volume during the casting ting for many films and TV shows lowed by tinted wax to give of counterfeit copies (including La Grande Vadrouille, The Museum’s message under- bronze a quick patina – to pirated (right). one of the most famous French scores the negative, widespread DVDs and CDs. It also highlights films of all time) – it features prod- and potentially dangerous im- the dramatic escalation in IP ucts for every taste. From per- pact of counterfeiting on produc- crime fuelled by the Internet, and fume, toys, and cleaning products ers, consumers and the econo- its profound effect on the cre- to USB keys, car parts, sporting my: not only discouraging ative industries. goods and pharmaceuticals – innovation, depriving righthold- even including bottled water, ers of income and supporting or- One of the Museum displays tomato ketchup and liquid gas – ganized crime, but also threaten- notes that an estimated 40 mil- the Museum offers a wide-rang- ing health and safety. lion counterfeit Swiss watches ing, intriguing and rather disturb- are produced each year – twice ing display of the enormous ex- It notes that badly made counter- the number of genuine watches tent of counterfeiting. feit toys are, at best, soon dam- “made in Switzerland” annually. In aged (“False Barbies” one cap- an apt commentary, the artist Given its subject matter, it seems tions warns, “quickly go bald”); at Maât used thousands of counter- particularly appropriate that the worst, they incorporate inflam- feit watches seized by the French Museum is situated on the rue de mable materials or toxic sub- customs authority and crushed in la Faisanderie, “faisan” being the stances, such as lead paint, or a hydraulic press to create L’Ar t French word for a crook. And vis- have small breakable parts that dans le Collimateur des Faussaires. itors quickly learn that crooks, present a choking hazard. The The watch debris was set in four 1 According to estimates and counterfeiting, have been dangers are many and varied, blocks of translucent resin, from the World Customs Organisation around for a long time. The oldest counterfeit products by their na- mounted on a base in which a and the Organisation counterfeit products on display, ture elude any health or safety glass niche sheltered two gen- for Economic Co- dating from around 200 BC, are controls. The Museum runs the uine watches. The sculpture – operation and Development (OECD). stoppers used to seal amphorae gamut, from fake sunglasses that which seeks to contrast true with 2 From the International filled with wine being transport- do not adequately protect the false, rarity with abundance, qual- Medical Products Anti- ed from Italy to Gaul. A genuine eyes to counterfeit car and air- ity with shoddiness – was, fitting- counterfeiting stopper, with the wine mer- plane parts that risk failing with ly, first exhibited at the Museum, Taskforce (IMPACT), launched by the World chant’s mark, is shown next to its disastrous consequences, and which now displays an artist’s Health Organization counterfeit used by an ancient sub-standard electrical appli- model of the work. (WHO) in 2006. Roman free-rider hoping to cash ances that present myriad do- in on someone else’s market suc- mestic dangers. Fake medicines cess. Over 2,000 years later, the are a particularly pernicious and 21 THE FATHER OF KARAOKE

He once claimed that he went to school in order to sleep, and that laziness was the major factor in thinking up karaoke. Daisuke Inoue never learned to read music, so he taught himself new music just by listening and repetition. He also claimed, in an interview with Time magazine, that while at school in Osaka, Japan, he chose to take up the drums because “all you have to do is hit them.”

By the early 1970s, he was part of a band which played in bars and clubs in nearby Kobe. The Japanese custom of providing musical entertainment for evening outings meant that it came quite naturally for the audience to sing along with the band. Mr. Inoue hit on the idea of pre-record- ing his own backing tracks and encouraging customers to sing, however unmusical or inhibited they might be, by following instead of leading, and he used technical AFP Photos: tricks to drown or attenuate the more jarring singing styles that emerged.

It started in earnest in 1971, when the President of a steel company invited him to join a week-end company trip to a resort to provide the entertainment. Unable to accept, Mr. Inoue created a substitute for the real thing by using music recorded on tape. It worked like a charm. Although this could have made him a millionaire had he only thought of patenting it, he has no regrets. As he told an interviewer from The Independent, “I’m not an inventor. I simply put things that already exist together, which is completely different. I took a car stereo, a coin box and a small amp to make the karaoke. Who would even consider patenting something like that?”

Others have and did, of course developing more sophisticated models. But initially, Mr. Inoue rented out his karaoke machines with tape-recorded music at relatively little profit – 100 yen per song – the price of a few drinks in 1971. Competitors sprang up, threatening his business, more especially with the emergence of laser disc-based machines in the 1980s: he reacted by successfully offering a major rival, the Daiichikosho Company, his services in handling their machines.

Today, the word karaoke needs no translation. Its meaning in Japanese is “empty or missing orchestra.” Roberto del Rosario, a Filipino national, was granted patents in 1983 and 1986 for a device generally known as the “karaoke machine.”

The most basic karaoke machine today has a microphone, means to alter the pitch of recorded music and an audio output. Increasingly sophisticated models can be found in entertain- ment hotspots; for example, karaoke boxes – small or medium-sized rooms or enclosed spaces rented by the hour or half-hour in hotels, bars, clubs, lounges and restaurants. Daisuke Inoue, however, is par- ticularly delighted with what he has heard about its healing powers in old people’s homes, hospitals, therapy or, generally, in the private lives of the depressed and lonely. It is a way to let go, to feel better. Or to have a chance to realize that secret desire to perform, no matter how well you sing.

More recently, he has invented and sold a device which releases chemicals to kill the cockroaches that enter karaoke machines, building nests and chewing wires. His latest invention is an environment- friendly pot that electrolyzes water for washing laundry, dishes and even mouths, without detergents or chemicals: this time round he is using the national and international patent system. 22 FEBRUARY 2009 WELCOME TO THE PUBLIC DOMAIN

Jurisdictions with a 70-year period of post-mortem copyright protection will be welcoming into the pub- lic domain this year a wealth of works from authors, artists and musicians who died in 1938*. This selec- tion was compiled once again (see WIPO Magazine 1/2008) by MIRIAM PHILLIPS, a student of music at Cambridge University, UK, for the IPKat weblog.

Ben Harney (1872-1938). A musician, songwriter Sir Henry Newbolt (1862-1938). The Englishman and pioneer of ragtime music, born in Tennessee, Henry Newbolt graduated from Oxford and prac- Benjamin Robertson “Ben” tised law until 1899. He published his first novels Harney’s early songs were great in the early 1890s, but his literary reputation was hits and the sheet music of not established until the publication of Admirals “Cake Walk in the Sky” is the first All, a set of ballads produced in 1897. The best written example of vocal rag- known of these is “Vitaï Lampada,” a ballad about ging. In 1897, Ben Harney’s Rag a future soldier who learns stoicism from playing Time Instructor was published, cricket. The poem was highly regarded during the giving the first description of First World War, but became heavily satirized by how to improvise ragtime mu- soldiers returning from the Western Front. The po- sic by syncopating popular et was knighted in 1915, and awarded the tunes. In 1924, the New York ‘Companion of Honour’ seven years later. Times wrote that Ben Harney “probably did more to popular- Grey Owl (1888-1938). Born in England and ize ragtime than any other person.” brought up in Hastings by his grandmother and aunts, Archibald Belaney left school at 16 and C.J. Dennis (1876-1938). Australia’s Clarence James moved to Canada. Once there, he changed his Dennis published his first poem at the age of 19. identity to that of “Grey Owl,” telling people he His most famous work, The Sentimental Bloke, sold was the son of an Apache woman and had emi- 65,000 copies in its first year of publication (1916). grated from the US to join the Ojibwa. After sev- The Songs of a Sentimental Bloke, one of numerous eral years working as a wilderness guide and for- spin-off publications, describes the day-to-day est ranger, Grey Owl started to publish his adventures of a man, his girl Doreen and friend writings about wilderness life, which promoted Ginger Mick. The Sentimental Bloke was adapted as environmentalism and nature conservation. Grey a stage play, silent movie, sound movie and musi- Owl even toured England in Ojibwa costume to cal; the title character even featured on a series of publicize his works and lecture on conservation- Australian stamps in the 1980s. ism. His aunts recognized him but chose to re- main silent. It was only after his death in 1938 that Sir Muhammed Iqbal (1877-1938). Born in what is doubts arose over his native-American identity. now Pakistan into a deeply reli- Discovery of his deceit led to the withdrawal of gious family, Muhammed Iqbal some of his books from publication and disillu- travelled and studied widely, sionment with his conservationist causes. obtaining qualifications in philosophy, English literature, E.C. Segar (1894-1938). American cartoonist Elzie Arabic and law from various in- Crisler Segar, creator of “Popeye the Sailor,” stitutions in Europe. Widely re- was determined to make his way as a cartoonist. ferred to as Allama (the schol- At the age of 18 he invested US$20 in a corre- ar) Iqbal, his Urdu and Persian spondence course in cartooning and, after a day’s poetry is regarded among the work as a film projectionist, he would “light the greatest of the modern era, oil lamps” and immerse himself in his course until and the anniversary of his birth the early hours of the morning. His first comic, is marked as a national holiday “Charlie Chaplin’s Comedy Capers,” was publish- in Pakistan to this day. ed in 1916. He moved east to work for the 23

New York Journal, draw- ing “Thimble Theatre.” The strip featured Olive Oyl, Castor Oyl and Ham Gravy. It was not for an- other 10 years, in 1929, that the enormously popular Popeye joined their ranks. After Segar’s early death at the age of 43, his assistant Bud Sagendorf continued to produce the comic.

Kasym Tynystanov (1901-1938). At the time of Wang Zhen (1867-1938). Wang Zhen, a modern Kasym Tynystanov’s birth, the level of literacy Chinese artist of the Shanghai school, was a close among Kyrgyz nomads was approximately two disciple of the painter Wu Changshuo, who be- percent and the Kyrgyz people had no written came his mentor. Some even claim that certain language, but he learned to read and write Arabic paintings attributed to Wu Changshuo are actual- from his father. Following the Soviet Revolution, ly by Wang Zhen. Wang Zhen spent most of his he sought further education in Almaty. While still life in Shanghai. He was an expert calligrapher as studying in Tashkent, he started to develop the well as a painter. He specialized in portraying first Kyrgyz alphabet. His poetry and prose began flowers, birds and Buddhist subjects. Wang Zhen’s to appear in Kazakh newspapers, printed in his paintings were particularly popular in Japan, new Kyrgyz script, and his songs became very where he had greater success than among his * Note. The term of popular with Kyrgyz youth. In 1924, after the ap- compatriots. copyright protection can proval of the new alphabet, he created the first be affected by other Kyrgyz readers for primary schools. Some 90 per- Zitkala-Sa (d.1938). Zitkala-Sa, which translates as rules in various cent of the terminology created by Kasym is still Red Bird, was a Native American writer, editor, mu- countries. In some in use today. He became the first Kyrgyz Minister sician, teacher and political activist. She was countries, for example, for Education and established the country’s edu- raised in South Dakota on the Yankton Sioux the term has been cation system. Reservation until the age of eight when she was temporarily prolonged removed from the Reservation to attend a board- because works could not César Vallejo (1892-1938). César Vallejo published ing school in Indiana. After studying at the Boston be exploited during only three books of poetry, but he is considered Conservatory of Music, Zitkala-Sa composed the wartime. The term will one of the influential poets of the 20th century. first American-Indian grand opera, The Sun Dance, also be longer for works One of 11 children, he was born in a village in the in 1913. While working as a teacher in Boston, she co-authored with Peruvian Andes. The exploitation of agrarian began to publish short stories and autobiograph- another person whose workers that Vallejo witnessed while working on a ical anecdotes that were serialized and later pub- term of protection has sugar plantation, greatly impacted his political lished in a collection called American Indian Stories. not yet expired. It is views. In 1916, he moved to Lima where he In her later years, Zitkala-Sa’s works were more advisable always to worked as a schoolteacher and met the artistic political. She published monthly articles and a check carefully the and political vanguard. He first poetry collection number of books depicting the hardships of be- status of a work in light was published in 1919. But the years that fol- ing forced to leave home for boarding school, of the applicable lowed were disastrous: he had an affair, lost his and the alienation she felt in both worlds. national legislation job, his mother died and he served a short prison before using it without term. When he emerged in 1922, he produced authorization. Trilce, which remains one of the most radically avant-garde collections in Spanish literature. Influenced by the Spanish Civil War, his last burst of poetic activity came in the late 1930s. former Director Deputy professor at theRobert 24 978-2-296-06284-9 General of WIPO and Schuman University,Schuman Reviewed by BOOK REVIEW a former associate FEBRUARY 2009 * Mr. Curchod isa which integrated of Strasbourg on January 1,2009. January Price: 34Euros Curchod* Francois the University L’Harmattan Publisher: ISBN: LES ENJEUX DE LA DE ENJEUX LES PROTECTION DES DESSINS DESSINS DES PROTECTION ET MODÈLES INDUSTRIELS MODÈLES ET DANS LE DÉVELOPPEMENT LE DANS EN AFRIQUE EN By StéphanieNgoMbem and socialdevelopment inquestion. ofthecountries could helpto strengthen thatthisarea to thecontribution oflaw theeconomic canand shouldmake not remain theoretical but couldhave arealontheevolution ofdesign impact law withinOAPI and Hopefully, ofthisrevision, whichwould mean thatthisbookwould theywillbefullyconsidered as part Stéphanie NgoMbem’s many proposals willbevaluablefor revision ofOAPI thenext legislative texts. aboutdevelopmentcerns are increasingly present butthatmuchremains to bedoneinthisarea. member states. The response isbalanced, insofarastheevolution oflegislative shows thatcon- texts The book’s generalconclusionaskswhethertheOAPI design system facilitates development inOAPI methods offightingcounterfeiting. ing designs; finally, theirlegalsystems memberstates more shouldmake reliable andreinforce their signers’ achievements aswell asthrough initiatives offering assistanceto interested sectors inexploit- member states shouldbedirectlyinvolved through awareness-raising andpromotion activities ofde- foreas oftechnical designs. assistanceandaccessto industrial productsthatincorporate markets OAPI tial treatment shouldbegiven to developing and, inparticular, countries, especiallyinthear- African gests that,inadditionto theneedfor greater ofdesign harmonization legislation, specialanddifferen- the role law ofbothinternational andOAPI memberstates. level, Attheinternational theauthor sug- focus ofthework ofthebook. on remedies term The finalparts inthesecondpart both longandshort Having proposed adiagnosis ofOAPI design law anditsapplication,theauthorgoesonto suggest abouttheexistence ofdesign protection andlackoffundsforknowledge paying filingfees. ular, possiblereasons for thelow level ofusagetheOAPI registration system, suchaslackof system, application. aswell asofitspractical gional property intellectual The authoranalyzes, inpartic- interesting alsopresents legalanalysesofthedevelopmentful. very ofdesign protection It inthisre- use- forAnyone generalinformation ofthisbookvery looking ontheOAPI system willfindthefirstpart tire continent,ifnotthedeveloping ingeneral. African world Organization Property (OAPI), Intellectual manyAfrican ofthepointsitelaborates are validfor theen- thatare countries members ofthe African concentratesthough thistimelywork onthe16sub-Saharan stand atpresent. to Drawing ourattention thesefacts isnottheleastofthisbook’s merits.al- Indeed, ten thatthepatent system barely atleastasthings in Africa, helpsto stimulate localinnovative activity patents have oftechnology ondevelopmentinterms transfer, inthesecountries itistoo forgot- often – is, however, Despitebeliefs, lesswell known. sometimesdiscussed –whichgenerate asubstantialnumberofaestheticcreations,countries butfew patentable inventions is well known. significanceThe overriding thatthisarea oflaw presents for thedevelopment ofAfrican area itsstatusasthemostneglected property ofintellectual andcopyright, property industrial tween designDespite thefascinatingcomplexitiesofindustrial law, from arising itspositionontheborder be- discusses bothsubjects,suchasthisonebyStéphanie NgoMbem,isto bewelcomed. property. lectual law isevenThe publicationofabookonAfrican lessfrequent, soapublicationthat designsThe publicationofabookonindustrial occurslessfrequently thanonany otherarea ofintel- ad nauseam , concerning theeffect , concerning 25 LETTERS AND COMMENT

De-Klientel’s Initiative

Following publication of NCC and STRAP officials as well as record label From Adans Osilama, the article “STRAP and owners, entertainment lawyers, marketing ex- De-Klientel Music, Photo: NCC Photo: CLAMP – Nigeria Copyright perts, distributors and other stakeholders. Nigeria Commission in Action” in WIPO Magazine 5/2008, I The program will boost consciousness of the am writing to inform you of fight against piracy and infringement of intel- the De-Klientel Music lectual property, enlighten and educate the Initiative. De-Klientel Music, an Abuja-based general public, while informing that ignorance music label, has designed a radio program that of piracy is not an excuse in the course of pros- will run on the popular Lagos-based Wazobia ecution. It will also consolidate awareness of the 95.5 FM. The program is intended to be a plat- efforts of NCC and STRAP, expose pirates and form through which to support NCC and STRAP their tactics, improve market standards, protect in the eradication of piracy. the interests of the stakeholders and ensure the growth of the entertainment industry. The one-hour radio program will be called 9ja (Naija) Top 10 and will promote Nigerian music This initiative – organized in collaboration with and artists through features, a countdown and NCC, STRAP and entertainment stakeholders – a segment with a star artist and an audience- will help sustain wealth creation and opportu- voted legend. The key segment will be a 20- nities throughout the entertainment industry. minute slot dedicated to live interviews with

Patent numbers and inventor’s information

First of all, I would like to congratulate you on the quality and clarity of the articles published in From Anibal R. Cabrera, the WIPO Magazine. The themes you develop are often discussed in our weekly meetings. Argentine Association of However, you often refer to different inventions from various countries without providing any pre- Inventors, Argentina cision on the patent numbers or the name of the inventor. It would add more value to the inven- tion and open up further avenues for its commercial exploitation if you provided this information.

Ammonia Synthesis

I thoroughly enjoyed the article “Ammonia Synthesis – The double-edged From Shiva R. Maharaj, sword” and look forward to future publications concerning such issues. The Intellectual Property Photos.com conclusion was interesting – ammonia synthesis being a “double-edged Office, Ministry of Legal sword” saving lives through increased food production but also accelerating Affairs, Trinidad & production of TNT which brought death to many. I cannot fathom where we Tobago would be today without such a process even bearing in mind the environ- mental concerns. 26 FEBRUARY 2009 IN THE NEWS

IP Board Game

Move over Monopoly, Scrabble and Checkers, there is a new board game in town: Anaryst™ – The Intellectual Property Game. Created by Mr. Pravin Anand, of the Anand and Anand law firm in New Delhi, India, the game is aimed at those 12 years’ old and above. It can be played by 2 to 4 players, who receive equal amounts of Ana (the board game currency) at the start of the game. Four industry areas – automobiles, beverages, computer systems and pharmaceuticals – are represented on the board. Each player chooses his industry at the start of the game and is given a card which shows the industry’s IP portfolio, which he will have to acquire as he goes around the board. Trespassing fines must be paid by players who fall on an industry square that is not their own. Players can buy the IP of an industry that is not their own, but should be- ware as they then become patent trolls!

King of Thailand Receives WIPO Award

The King of Thailand, His Majesty The King of Thailand is an acclaimed King Bhumibol Adulyadej, received artist with a portfolio of over 1,000 on January 14 the WIPO Global works, including paintings, photos Leader Award in recognition of his and musical and literary works. He is extraordinary commitment to pro- also an accomplished inventor, moting intellectual property and holding over 20 patents and 19

his important contribution to socie- Thailand Affairs of MinistryPhoto: of Foreign trademarks. Many of His Majesty’s ty as a prolific inventor. The award His Majesty King Bhumibol inventions, which include a water was presented by WIPO Director Adulyadej of Thailand is aerator and artificial rainmaking presented with the WIPO General, Mr. Francis Gurry, at a cere- Global Leader Award by technology, have generated con- mony at the Klai Kangwon Palace in WIPO Director General crete and practical benefits for rural Hua Hin, Thailand. Francis Gurry. communities in Thailand.

Global Economic Slowdown Impacts the PCT

International patent filings under the Patent Cooperation Treaty (PCT) grew by 2.4 percent in 2008, to nearly 164,000 (provisional estimate) applications. While the rate of growth was modest, compared to the average 9.3 percent rate of growth in the previous three years, the total number of applications for 2008 represents the highest number of applications received under the PCT in a single year.

Nanotechnology – Science fiction becomes reality

Monash University in Clayton, Australia, has developed a nano-robot 250 nanometers in diameter - the thickness of 2 or 3 strands of hair. Proteus, so-named after the miniature submarine in the science fic- tion movie “Fantastic Voyage,” can, potentially, be injected into the body and maneuvered by remote control to perform brain surgery or unblock blood vessels. The difficulty is in motorizing the robot so that it can withstand currents in the bloodstream and perform the expected tasks – making incisions or chiseling. Researchers believe that they will be able to use waves with a power of 2 to 3 watts to op- erate Proteus. 27

Happy 50th Barbie™

Barbie will celebrate her 50th waist. No other doll in the from selling the infringing Bratz birthday on March 9, which American market looked like doll on December 3, 2008, a de- marks the opening day of the her. She was an instant success; cision that MGA announced it American International Toy Fair Mattel sold some 350,000 dolls would appeal. in New York where she made in the first year of production. her debut in 1959. The doll was Over the years, over a billion inspired by the German doll Bild Barbie dolls have been sold in Lilli, itself inspired by a character 150 countries – Mattel claims in a German newspaper comic that three are sold every second. strip. Ruth Handler, wife of Elliot, a co-founder of Mattel Inc., pur- Mattel acquired rights to Bild chased three Bild Lilli dolls while Lilli in 1964 and stopped its pro- vacationing in Europe in 1956. duction. But Barbie has remain-

When she got home, she gave ed a subject of controversies – Mattel Photos: 1959 2009 one to her daughter Barbara many of which now center on and the other two went to the unrealistic body image she Barbie sales are still going Mattel where the design was re- presents to young women – strong – she remains the most worked – thus Barbie, named af- and lawsuits. The most recent of popular doll for girls. But she ter Ruth’s daughter, was born. these was launched by Mattel may need freshening up for against MGA Entertainment Inc., her 50th birthday; last year’s Like Bild Lilli, Barbie was tall and makers of Bratz dolls. Mattel fourth quarter sales worldwide slim with long legs and a tiny won a court order banning MGA fell 21 percent.

IP Rights to Ka Mate

The government of New Zealand and Ngati Toa, a Zealand’s rugby team, or its use by fellow New tribal community (or, “iwi”), signed an agreement Zealanders. “It’s when it is appropriated for quite on February 12 to settle their historical Treaty of explicit commercial exploitation that we would Waitangi claims. This agreement contains a spe- want to have some sort of say,” said an iwi cial provision for the Ka Mate haka, a traditional spokesperson. Maori dance form and cultural expression. Ngati Toa’s ancestor, Te Rauparaha, composed the WIPO’s Intergovernmental Committee on Intellec- dance. The iwi’s concern is with the inappropriate tual Property and Genetic Resources, Traditional use and commercial exploitation of the haka Knowledge and Folklore (the IGC) is examining the which was used in a 2006 Fiat commercial and a international dimension of issues such as those recent Hollywood movie about rugby, Forever canvassed in this agreement. In 1998, WIPO con- Strong. The settlement, which still needs to be ducted a fact-finding mission to New Zealand and transposed into legislation, records “the signifi- met with several Treaty of Waitangi claimants to cance of the haka.” hear their concerns and aspirations.

The agreement will not affect the popular per- formance of the haka by the All Blacks, New Source www.nzherald.co.nz 28 FEBRUARY 2009 NEW PARTIES TO WIPO-ADMINISTERED TREATIES IN 2008

During 2008, 51 instruments of accession or ratification of treaties administered by WIPO were deposit- ed with the Director General of WIPO. The treaties and new adherents are as follows:

In the field of industrial property Nice Agreement Concerning the In the field of copyright and International Classification of related rights Paris Convention for the Protection Goods and Services for the Purposes of Industrial Property (1883): of the Registration of Marks (1957): Berne Convention for the Protection Thailand (1); bringing the total Jordan (1); bringing the total of Literary and Artistic Works number of States to 173. number of States to 83. (1886): Yemen (1); bringing the total number of States to164. Patent Cooperation Treaty (PCT) Vienna Agreement Establishing an (1970): Sao Tome and Principe International Classification of the Rome Convention for the (1); bringing the total number of Figurative Elements of Marks Protection of Performers, Producers States to 139. (1973): Jordan (1); bringing the of Phonograms and Broadcasting total number of States to 25. Organizations (1961): Tajikistan The Madrid system for the (1); bringing the total number International Registration of Marks Budapest Treaty on the of States to 87. (Madrid Agreement (1891) and International Recognition of the Madrid Protocol (1989)): Bosnia Deposit of Microorganisms for the WIPO Copyright Treaty (WCT) and Herzegovina, Ghana, Purposes of Patent Procedure (1996): the Russian Federation, Madagascar and Sao Tome and (1977): Bosnia and Herzegovina, Switzerland, Trinidad and Tobago Principe (4) adhered to the Madrid Costa Rica, Peru and Jordan (4); and Turkey (4); bringing the Protocol; bringing the total bringing the total number of total number of States to 68. number of States/IGOs to 78. States to 72. WIPO Performances and Trademark Law Treaty (TLT) (1994): Hague Agreement Concerning the Phonograms Treaty (WPPT) Honduras, Costa Rica and El International Deposit of Industrial (1996): Republic of Korea, Salvador (3); bringing the total Designs (1925): Bosnia and Russian Federation, Trinidad number of States to 42. Herzegovina, Bulgaria, Denmark, and Tobago, Turkey, Uruguay Ghana, Lithuania, Oman, Sao and Switzerland (6); bringing Singapore Treaty on the Law of Tome and Principe, Syrian Arab the total number of States to 68. Trademarks (2006): Australia, Republic and the African Bulgaria, Denmark, Kyrgyzstan, Intellectual Property Organization Brussels Convention Relating to Latvia, Republic of Moldova, (OAPI), (9) adhered to the 1999 the Distribution of Programme- Romania and United States of Geneva Act of the Hague Carrying Signals Transmitted by America (8); bringing the total Agreement; bringing the total Satellite (1974): Honduras, number of States to 10. The number of States/IGOs to 34. Republic of Moldova and Oman Singapore Treaty will enter into (3); bringing the total number force on March 16, 2009. Patent Law Treaty (PLT) (2000): of States to 33. Australia and Switzerland (2); Strasbourg Agreement Concerning bringing the total number of Nairobi Treaty on the Protection of the International Patent States to 19. the Olympic Symbol (1981): Classification (1971): Bosnia and Hungary (1); bringing the total Herzegovina (1); bringing the number of States to 47. total number of States to 59. NEW PRODUCTS

Patent Cooperation Treaty (PCT) and Regulations under the PCT (as in force from January 1, 2009) English No. 274E, French No. 274F 20 Swiss francs (plus shipping and handling)

The Enforcement of Intellectual Property Rights: A Case Book – 2nd Edition English No. 791E 70 Swiss francs (plus shipping and handling)

The Economics of Intellectual Property – Suggestions for Further Research in Developing Countries and Countries with Economies in Transition English No. 1012E 30 Swiss francs (plus shipping and handling)

The International Patent System in 2007 – PCT Yearly Review German No. 901G Free of charge

Guide to WIPO Mediation Chinese No. 449C Free of charge

Learn from the Past, Create the Future: Inventions and Patents Chinese No. 925C Free of charge

Purchase publications online: www.wipo.int/ebookshop Download free information products: www.wipo.int/publications/ The above publications may also be obtained from WIPO’s Product Marketing & Distribution Unit: 34, chemin des Colombettes, P.O. Box 18, CH-1211 Geneva 20, Switzerland | Fax: +41 22 740 18 12 | e-mail: [email protected] Orders should indicate: (a) the number or letter code of the publication desired, the language, the number of copies (b) the full address for mailing (c) the mail mode (surface or air). NEW PRODUCTS

Rapport mondial sur les brevets: étude statistique – 2008 French No. 931F, Spanish No. 931S Free of charge

Hacer oír las voces de la comunidades indígenas y locales en la labor de la OMPI relativa a los conocimientos tradicionales, las expresiones culturales tradicionales y los recursos genéticos: El fondo de contribuciones voluntarias de la OMPI – Folleto N°3 Spanish No. 936S Free of charge

For more information contact or its New York Coordination Visit the WIPO website at: WIPO at: Office at: www.wipo.int Address: Address: and order from the WIPO Electronic 34, chemin des Colombettes 2, United Nations Plaza Bookshop at P. O. B o x 1 8 Suite 2525 www.wipo.int/ebookshop CH-1211 Geneva 20 New York, N.Y. 10017 Switzerland United States of America Telephone: Telephone: +41 22 338 91 11 +1 212 963 6813 Fax: Fax: +41 22 733 54 28 +1 212 963 4801 e-mail: e-mail: [email protected] [email protected]

The WIPO Magazine is published bimonthly If you are interested in receiving copies, contact: Copyright ©2009 World Intellectual Property by the World Intellectual Property Organi- Organization zation (WIPO), Geneva, Switzerland. It is Product Marketing & Distribution Unit intended to help broaden public under- WIPO All rights reserved. Articles contained herein standing of intellectual property and of 34, chemin des Colombettes may be reproduced for educational purposes. WIPO’s work, and is not an official document P. O. B o x 1 8 No part may, however, be reproduced for com- of WIPO. Views expressed in articles and let- CH-1211 Geneva 20 mercial purposes without the express written ters by external contributors do not necessa- Switzerland consent of the Communications Division, rily reflect those of WIPO. Fax: +41 22 740 18 12 World Intellectual Property Organization, P.O. e-mail: [email protected] Box 18, CH-1211 Geneva 20, Switzerland. The WIPO Magazine is distributed free of charge. For comments or questions, contact: The Editor, WIPO Magazine [email protected]

WIPO Publication No. 121(E) ISSN 1020-7074 (print) ISSN 1564-7854 (online)