Category Archives: Humour

Mr Pettifog speaks his mind. Unfortunately.

miseryWhat is your tube, and how do I get on it, asks Mr Pettifog at partners’ tea last week. Misery Line, Hampstead branch, replies Old Unreliable wittily. I generally use the lift, he adds, taking a ginger hobnob from the tray.

A puzzled silence descends on the room. Eventually, Bright Spark speaks. Do you mean YouTube, she asks? Yes, that’s what I said, replies Mr Pettifog.

Was there something in particular you wanted to see?, asks Young Hope. It’s mostly videos of cute cats, he adds.

Oh, I just wanted to see if someone had recorded something, Mr Pettifog replies.

catYoung Hope and Bright Spark quickly look at one another. Bright Spark renews her cross-examination. Was it something you recorded?, she asks. No, I wouldn’t know how to, replies Mr Pettifog smugly. Then something you said, but someone else recorded?, asks Jim Rough-Diamond, joining the cross-examination tag team.

Oh, I don’t know, replies Mr Pettifog, attempting an air of mild boredom. Does anyone want that last cucumber sandwich?, he adds, trying to deflect attention from his earlier question.

While this is going on, Young Hope has opened his iPad and searched on the YouTube site. An Anglo-Saxon expression escapes his lips.  Could this be the recording you were interested in?, he asks, quickly making a remote connection to the tea room’s flat-screen TV.

Everyone in the room turns towards the TV. It shows a panel discussion at a conference. Three middle-aged, white men in business suits are sat at a table. Mr Pettifog is one of them. On the wall behind the table, the logo of World IP Professionals is clearly visible. A voice can be heard, apparently a member of the audience who cannot be seen on the recording. The voice asks: how can you reconcile the government’s decision to go ahead with ratifying the World IP Arbitration Treaty, which is subject to the supervisory jurisdiction of the Court of Justice of the European Union, with the Prime Minister’s statements that the CJEU won’t have any jurisdiction in the UK after Brexit?

Mr Pettifog is the first to reply. Well, he says, we don’t trust a word that this government says, do we? (The audience laughs, and he warms to his theme.) And anyway, they’re too stupid to realise that ratifying the convention leads to CJEU jurisdiction. And so are the tabloid newspapers, and the oiks that write articles for them. (More laughter, some of it nervous.) They won’t be interested in this kind of subject, it’s far too intelligent for them.

The recording ends, and Young Hope switches off his iPad.

Jim Rough-Diamond is the first to speak. Oiks are too stupid to realise?, he asks.

chathamIt was a private meeting, subject to the Chatham House rule, replies Mr Pettifog sulkily. Whoever recorded it was clearly in breach of a legal duty. Can’t it be deleted from your tube?

Young Hope shakes his head. Mr Pettifog turns white, then hastily leaves the room. Partners’ tea resumes.

 

[Note: this is an entirely fictional story, inspired by a real-life incident, but with completely different facts, people, motivations and outcome, and written for humorous purposes only. No, really.]

 

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Use restrictions in contracts of sale

pink or black for court?

pink or black for court?

Long-term readers of this blog may recall earlier articles about whether a seller of a product may restrict the use that the purchaser can make of that product, and whether such restrictions are binding on subsequent owners of the product. For example, may the original seller exercise its IP rights against a subsequent owner to enforce any such restrictions? This subject raises questions of public policy that, in different jurisdictions, are channelled into legal principles such as exhaustion of rights, non-derogation from grant, and the first sale doctrine. See, for example, the EU UsedSoft case, discussed here in 2012.

This subject was forced back into IP Draughts’ mind by the recent spat between two artists, Sir Anish Kapoor and Mr Stuart Semple, reported here.

Apparently, Sir Anish has acquired an exclusive licence, in the field of art, to use Vantablack, the “blackest black” in existence, which is a technology based on carbon nanotubes. According to an FAQ on the website of Surrey Nanosystems, the creator of Vantablack, it seems that what Sir Anish has a licence to is a variant of Vantablack, known as Vantablack S-VIS:

Vantablack is generally not suitable for use in art due to the way in-which it’s made. Vantablack S-VIS also requires specialist application to achieve its aesthetic effect. In addition, the coating’s performance beyond the visible spectrum results in it being classified as a dual-use material that is subject to UK Export Control. We have therefore chosen to license Vantablack S-VIS exclusively to Kapoor Studios UK to explore its use in works of art. This exclusive licence limits the coating’s use in the field of art, but does not extend to any other sectors.

Let’s leave the interesting export-controls point to another day. It is not entirely clear what IP is being licensed, though presumably there is at least some know-how involved. Another FAQ indicates that:

Vantablack is a globally registered trademark and recognised brand owned by Surrey NanoSystems Limited. Companies would need written permission from SNS to use the Vantablack name in their products.

Incensed by Sir Anish’s actions in taking this exclusive licence, and the consequent restraint on artistic freedom, fellow artist Mr Stuart Semple has created the “pinkest pink” and is selling pots of the stuff, subject to the following condition:

Note: By adding this product to your cart you onfirm [sic] that you are not Anish Kapoor, you are in no way affiliated to Anish Kapoor, you are not purchasing this item on behalf of Anish Kapoor or an associate of Anish Kapoor. To the best of your knowledge, information and belief this paint will not make it’s [sic] way into that [sic] hands of Anish Kapoor.

Sir Anish has apparently responded to this provocation with a photograph of (inter alia) his hand:

pink

According to Surrey Nanosystems, one of the stated benefits of Vantablack is “its ability to absorb light energy and convert it to heat”. Mmm…

Readers are invited to comment on whether they think the contractual restriction on supply to Anish Kapoor is enforceable, and what the measure of damages for breach of contract might be.

 

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A song about Brexit

porterWith apologies to Mr Cole Porter, IP Draughts and others have re-written one of his best-known songs. This follows an exchange on Twitter yesterday with @law_and_policy and @iamthebaritone. The version below is further revised. Imagine a butler answering the phone to one of Miss Otis’ friends, in a swanky New York apartment in the 1930s.

Miss Otis regrets Article 50 will be delayed, madam.
Miss Otis regrets Article 50 will be delayed.
She is sorry it’s not yet done,
Though last Summer down at Leaver’s Lane
They won, madam.
Miss Otis regrets Article 50 will be delayed.
When she woke up and found
That her EU dream was gone, madam,
She ran to the man
Who had called the referendum.
And from under her velvet gown
She drew a gun and shot her PM down (politically), madam.
Miss Otis regrets Article 50 will be delayed.
When the Daily Mail turned on her
And dragged her from Number 10, madam,
They stitched her up, shouting that England ruled the world.
And the moment before she (politically) died
She lifted up her lovely head and cried, madam.
Miss Otis regrets Article 50 will be delayed.

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Mr Pettifog, international trade negotiator

risk assessmentThe air was so thick with smugness that a health and safety officer, conducting a mental risk assessment, would have ordered an immediate evacuation of the room. Fortunately there were no health and safety professionals at partners’ tea last week.

Mr Pettifog was telling us about his recent trip to Nigeria as a government envoy. “The Secretary of State gave me a letter to hand personally to President Buhari”, he said. “They serve very good tea at Aso Villa”, he added, aware that no-one else in the room would be familiar with the name of the President’s official residence. But no-one rose to take the bait. We were too stunned by the idea that Mr Pettifog had been employed as a diplomat.

Incredibly, it appears that the UK government considers him to be a “senior and respected figure in the field of commercial law” – to quote a letter from a civil servant at the Department for International Trade that he gleefully passed around the room. The letter invited him to participate in trade negotiations in Nigeria as a personal representative of the Right Honourable Dr Liam Fox MP, Her Majesty’s Secretary of State for International Trade.

“Are you both in the Masons?” asked Jim Rough-Diamond, head of our commercial litigation department, as a look of utter bewilderment settled on his craggy Northern face. Mr Pettifog pretended not hear the question, and continued with his account of the trip. “Of course, the main negotiations were held in Lagos, but we were flown to Abuja for the diplomatic niceties.”

range rover“I nearly didn’t make it to last day of negotiations, as the door on the embassy’s bullet-proof Range Rover wouldn’t open and I was stuck in the car for nearly an hour. I didn’t make a fuss, though. I just suggested they might want to oil the hinges.”

“So, did you agree the terms of a trade treaty?” asked Bright Spark.

“Not yet”, replied Mr Pettifog. “But we have agreed an agenda for discussing the procedures to be followed in future negotiations. And I insisted that the quorum for future meetings should always include a senior UK legal representative. Without proper legal advice they are bound to cock it up. Of course, intellectual property will be one of the key themes when we get into substantive negotiations”, he added, looking at IP Draughts.

It looks like Mr Pettifog will have British Airways Gold Club status for a while.

 

 

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