Ballet and Intellectual Property - my Excuse for reviewing "Beauty and the Beast"

One of my passions is ballet. In a funny sort of way I owe my career in intellectual property to ballet because I discovered Lincoln's Inn while looking for free parking within walking distance of the Royal Opera House one matinee.

There are some connections between intellectual property and ballet which I discussed in some detail in "Cracking Nuts - Copyright in Choreography". That article was my excuse to review David Nixon's "Nutcracker" in my IP North West blog on 24 Nov 2011. As Yorkshire folk don't like to read stuff that's been served up before I have to think of something new now. Having squeezed the Massine v de Basil lemon dry in my other article I've decided to review Northern Ballet's "Beauty and the Beast" which I saw at The Grand Theatre in Leeds last night. I shall also mention some of the company's services to Yorkshire business as well as some of things that Yorkshire business can do for Northern Ballet.

Beauty and the Beast is not an easy story to choreograph. Scottish Ballet had a go with Thea Musgrave's score many years ago. I reviewed for "Aien" (St Andrews University student newspaper) when it was premiered at The King's Theatre in Edinburgh in 1969. Ballet Cymru also seems to have had a version in its repertoire. Another link with IP, incidentally, since Ballet Cymru is based in Newport, the same town as the Intellectual Property Office. And, of course, there is the Birmingham Royal Ballet's version. But none of those versions has ever achieved the popularity of works like Coppelia, Giselle, Nutcracker, Sleeping Beauty or Swan Lake. Will David Nixon's version do any better? The answer is that I am just not sure.

Beauty and the Beast has an awkward story line with two sets of main characters:

• Prince Orian who gets turned into a wild beast; and
• a King Lear type figure with three daughters (one of whom is "Beauty") who are turned out of their house by the bailiffs as a result of the girls' extravagance and end up in an old bus in a forest where the old man gets mugged by the beast.

There are also strong roles for good and wicked fairies and the beast's steward. There's also a mishmash of music from Bizet, Poulenc and Saint-Saëns. No wonder my companion (a considerable artist in her own field) and I asked ourselves what was going on in the interval.

Beauty and the Beast is also a very big ballet demanding a very big stage for Duncan Hayler's set. The Grand is an intimate theatre not ideally suited for ballet and its stage did not do it justice.

As for Nixon's choreography the first two acts reminded me of early McMillan - works like Anastasia which are not performed very often nowadays for a reason. But the last Act reminded me of Balanchine and I think it was that Act which saved the ballet. The pas de deux between Beauty - danced exquisitely by Martha Leebolt - and the beast showed just what the choreographer can do. Also impressive were Victoria Sibson and Hannah Bateman who danced the fairies, Hironeo Takahashi, the beast's servant and the coryphées, Michela Paolacci, Ayana Kanda, Christie Duncan and Isabella Gasparini who were four sprites. The last Act of the ballet could well stand as a work in its own right. I hope to see that Act many times again but I would happily skip the first two acts with its old bus and bailiffs.

Before I turn to Northern Ballet's business services and how to sponsor a dancer, I should mention I-Candy, a gorgeous confiserie, patisserie and ice cream parlour a few doors down and on the same side of the road. My friend had one of their waffles with hot white chocolate and I had some chocolate cheesecake thereby undoing all the good work in the gym a few hours earlier. Well it is Christmas.

Now back to business. Northern Ballet's building can be hired for conferences, exhibitions and even a Girl Geek dinner. Are you listening Imran? You'd have a sell out. Here's a video about the place.


Businesses can also sponsor the company as a whole or indeed individual dancers. You will need a good IP lawyer for that. I shall certainly sponsor a dancer just as soon as I can. I hope that some of my readers - especially my patent and trade mark agent clients - will do the same.

Happy New Year folks.

Bradford Rising Stars: a local opportunity to implement Hargreaves

One of the recommendations of Prof. Ian Hargreaves in his review of intellectual property and growth published earlier in the year was for the IPO to draw up plans to improve accessibility of the IP system to smaller companies who will benefit from it. He added that this should involve access to lower cost providers of integrated IP legal and commercial advice.

I discussed this recommendation at some length in my article "Does Hargreaves say anything new?" (24 June 2011):

"The review recognized that SME want is an integrated source of advice which combines commercial and technical insight with legal expertise, helping them to commercialize, as well as protect, their IP. It also found that such advice is not always available from patent agents. That was just the sort of service that many – though, alas, by no means all - Business Link advisers used to provide. Hargreaves called upon the IPO to “draw up plans to improve accessibility of the IP system to smaller companies who will benefit from it”. The review added that “this should involve access to lower cost providers of integrated IP legal and commercial advice.” Again, these are worthy aspirations but there is a limit to what the IPO can do. The 13 PATlib libraries may be a better platform. Many such as Leeds, Sheffield and, of course, the British Library run IP clinics and inventors’ clubs. They also hold considerable collections of marketing and general business as well as legal materials which they make available to the general public. Unfortunately, our second city no longer offers the services of a specialist patent librarian and Liverpool library is closed for refurbishment."

The day before the IPO announced a package of measures to implement that recommendation I was at Bradford Chamber of Commerce meeting the Rising Stars team. The Rising Stars programme is a project funded by the European Regional Development Fund and Bradford City Council and administered by the Chamber to "help a select group of Bradford businesses to push ahead and grow." This help includes "a free, dedicated and personal advice service to entrepreneurs and established businesses within the Bradford area."

I was invited to meet the team because several had clients with intellectual property issues who had difficulty in obtaining affordable advice from patent and trade mark agents and reliable advice from anybody else. As Professor Hargreaves recognized at paragraph 9.9 of his review

"At present, long established IP legal advisors (for example, patent attorneys) seldom offer expertise on the commercial aspects of IP. Conversely, IP advisors with a business focus lack the detailed legal knowledge to assist SMEs in obtaining IPRs."

I had a very good discussion with the advisers. After explaining the difference between intellectual assets and intellectual property and the different types of legal protection that were available for brands, designs, technology and creative works, I outlined the services that were available for artists, designers and inventors and entrepreneurs and investors. I told them that these services were listed nationally and regionally on my Inventors Club website and updated regularly in my Inventors Club blog. I mentioned some of the services that I offer nationally through my NIPC Clinics and locally through my Third Thursday clinics at Gumption.

In Q & A I was asked precisely what I did and how my services differed from "pay-tent" attorneys and solicitors. After explaining as patiently as I could that the word for the monopoly of a new invention is pronounced "pat - tent" ("pat" as in grass at least as pronounced locally) and that "pay-tent" refers to the type of leather used for court shoes, I described the services offered by each of those professions. I explained how the relationship between patent and trade mark attorneys, solicitors and the patent bar was analogous to the relationship between general practitioners and consultant physicians and surgeons in medicine.

In answer to a question from Peter Briggs, who was determined to put this airy, fairy, uppity lady barrister in her place, as to when exactly he should send a client to me, I replied that I was a member of a referral profession and that in an ideal world clients should come to me through patent agents and solicitors. However, I added, I had noted that this was far from a perfect world and that by the time clients came to me it was often too late to help them. Sometimes they had spent all their money on applications for patents that they could not afford to renew let alone enforce or they had been to solicitors or other professional advisers on a learning curve who had tried to issue patent infringement claims in the local district registry or county court. That was why I had set up the clinics and inventors clubs to make sure that as many members of our local business community as possible get as much advice as possible at as early a stage as possible.

Mr. Briggs asked whether filling in the on-line form would oblige inventors to disclose their inventions. "No it wouldn't" I assured him. "It would simply enable me to find the best sort of help for them." I had a panel of experts with whom I had worked in the past and whom I could trust to do a good job at a reasonable rate:

• patent agents such as Michael Harrison, Alex Tomkinson and Tom Hutchinson;
• trade mark agents like Carin Burchill, Paul Dyson and Phil Cooper;
• US IP attorneys like Toni Tease and Doug Isenberg;
• specialist solicitors like Kate Reid and James Love;
• product design consultants like Richard Hall, John Biddleston and Alex Smith;
• brand consultants like Nick Burton

and all sorts of other specialists whose expertise runs from China to ceramics. "Well won't those folk charge" asked Mr. Briggs. "Only after they have identified the problem, decided whether they can help the client and quoted for the job" I replied.

The time at Bradford passed very quickly and, before we knew it, it was up. In an email to Carolyn Coleman who chaired the meeting I mentioned some of the other resources that I have not mentioned in this post such as my presentations on Slideshare, articles on J D Supra, blog on IP developments in the Gulf and, of course, my website.

Should anyone want to discuss this post or IP rights in general he or she should call me on 0113 320 3232 or use my contact form.

Latest IP Yorkshire Newsletter

The latest IP Yorkshire newsletter is out with articles on

• the LEP Summit in Leeds on 9 Sept 2011
• FabLabs for Yorkshire
• injunctions against ISPs
• IP law in the Gulf
• Gumption
• guidance for web designers
• inventors, and
• IP dispute resolution.

Earlier issues of the newsletter are archived. You can download them by clicking the links to the sidebar.

"Cost Effective Product Development" Leeds Inventors Group: 16 Nov 2011

Alex Smith's talk to Leeds Inventors Group "Cost Effective Product Development" on 16 Nov 2011 was one of the best presentations we have ever had. Alex is a product designer, a director of Trig Creative of Horsforth near Leeds and a visiting lecturer of Huddersfield and Leeds Met Universities.His talk explored the design process, getting a product to market, finding funding and a whole lot more. He also gave examples of some of his work. You will find his slides below.

If you want to contact Alex he is at

TRIG Creative Ltd
Dale House, 64 Fink Hill,
Horsforth, Leeds,
Yorkshire
LS18 4DH

Telephone: +44 (0) 113 258 0110

email: design@trigcreative.com

View more presentations from Jane Lambert

Gumption Centres at Leeds City Varieties

Gumption Centres are a set of serviced offices in the centre of Bradford started and run by my good friends David Robertson Brown and John Sims nearly 5 years ago. Just under 2 years ago David and John branched out into VoIP and virtual office services with GB Offices. Yesterday, I checked out their latest venture which is meeting room accommodation at Leeds City Varieties.

Leeds City Varieties is one of our few surviving and thriving music halls (not unlike Vaudeville in the USA) and its auditorium is one of the most beautiful theatres anywhere. For many years it was the venue for the BBC varieties show "The Good Old Days" where members of the audience wore period costume.

My late mother, who came from Bramhope, one of the posher Leeds suburbs, would have been horrified by my visiting the Varieties because it was no place for a lady when she was a girl. As you can see from the photo, times have changed. I was given a conducted tour by the centre manager. I photographed her in Gumption's space at the Centre.

Another lady I met at the Centre, was Gaynor Beckett, an employment law and litigation consultant. Gaynor, who qualified as a solicitor and worked for trade unions and in local government, offers practical advice on employment law. Essentially keeping folk out of trouble and legal expenses down. As the legal services industry is undergoing changes comparable to those that revolutionized the financial services industry in the 1980s I am sure she iwill do very well indeed.

Why Gumption Centres? When I moved to the Huddersfield Media Centre at the end of 2004 I arranged an exhibition and conference on invention and innovation at the Media Centre and the University called "Brass from Gumption" on 18 Feb 2005. It was a triumph with speakers of the calibre of Trevor Baylis and Lawrence Smith Higgins of the IPO and visitors from all over England. David helped me arrange the event. After the conference he asked me whether he could use the name for his business which I was glad to let him do so. He and John helped me over the years by hosting conferences and seminars and other services and I have assisted them with advice and drafting in return.

A FabLab for Keighley?

"FabLab" is an abbreviation for fabrication laboratory. It is described in Wikipedia as "a small-scale workshop offering (personal) digital fabrication." It is typically equipped with a range of computer controlled tools that cover several different length scales and various materials, with the aim of making "almost anything". There are FabLabs across the world from Southern Ghana to Northern Norway including one in Manchester that I mentioned in my IP North West blog yesterday ("FabLab Manchester: Introduction to Intellectual Property" IP North West 8 Nov 2011).

Jane Keats gave a presentation that focused on FabLabs entitled "Factories of the Future" to Leeds and Sheffield inventors clubs on 21 Sept and 3 Oct 2011 (see "Jane Keats on 'Factories of the Future'" in my Inventors Club blog of 7 Nov 2011 and "LIG 21st Sept 11 Fablabs - Factories of the Future? Jane Keats" in the Leeds inventors Group blog). Also, the Keighley News reported that a mobile FabLab would be set up in Keighley on 8 Sept 2011 to coincide with the British Science Festival (see "Chance to go and explore Universe", Keighley News 8 Sept 2011).

In her talk Jane mentioned the possibility of a permanent FabLab in Keighley there are at last signs that that may be happening. Much of the equipment for the Keighley site was purchased some months ago and is now being stored at FabLab Manchester. Now the post of CEO for the "Centre for Manufacturing Excellence" at an annual salary of £45,000. The job advertisement notes that:

"The CME will also operate a Fab Lab. A Fab Lab is a digital fabrication laboratory, originating from MIT in the States around ten years ago to “empower individuals rather than institutions to be able to make almost anything”.Fab Labs are a facility for rapid prototyping and assistance with product development. Labs also provide educational and training workshops for schools, colleges and open access to the community.


The CEO on appointment will initially establish a smooth and effectively operating Fab Lab, exploiting different markets to generate revenue to sustain the Fab Lab operations.The Fab Lab will attract commercial clients, sole inventors, schools, colleges and a diverse community."

I drew these developments to the attention of Councillor Mehboob Khan, leader of Kirklees metropolitan borough council and deputy chair of the Leeds City Region local enterprise partnership at the LEP Summit in September. Councillor David Ridgway, another Kirklees Councillor has also offered his support.

The job description for the Keighley FabLab stipulates that the successful candidate will have "an understanding of intellectual property rights". That is to be welcomed though he or she and the interview panel should be aware that additive manufacturing technologies present particularly complex. As a starter, however, they would do worse than begin with the presentations that patent agent Tom Hutchinson, specialist solicitor Michael Sandys and I gave to FabLab Manchester on 12 Oct 2011.

If anybody has any questions or comments, he or she can contact me through my contact form, Facebook, Linkedin, Xing or twitter or call me on 0113 320 3232.

Regional Growth Fund: who got what in Yorkshire

In "Tarzanned" I wrote about the Regional Growth Fund Roadshow in York in my Inventors' Club blog on 1 June 2011. Today, the Department of Business Innovation and Skills has announced the successful bidders for the second tranche of the £1.4 billion fund.

The companies and local authorities in Yorkshire and Humber that have been offered a share of the £950 million are as follows:

• SEW Eurodrive UK
• Cummins Turbo Technologies
• Surgical Innovations Ltd
• BOC Ltd
• East Riding of Yorkshire Council
• University of Sheffield - AMRC
• Sirius Minerals, Plc
• Leeds City Region
• North Lincolnshire Council
• Wakefield Council
• City of Bradford MDC
• Sheffield Forgemasters International Limited
• Stainless Plating Limited
• T&N Plastics Limited
• 600 UK Ltd
• RoadTankers Northern Ltd

• Heights Ltd
• Hindle
• VTL (Europe) Ltd
• i-plas Products Ltd
• Halifax Rack and Screw Cutting Co Ltd
• Treves UK LTD
• Severn Unival Ltd

It is hoped that these grants will create 3,000 new jobs directly and 13,700 indirectly.

As I said in the penultimate paragraph of my previous article this money does not come without strings and will have to be repaid if it does not bring the promised employment. However, with the exception of the Department of Culture Media and Sport's Broadband Delivery UK Fund this is the only large scale grant allocation that can be expected from HM Government in this Parliament. That does not mean to say that there are not other sources of funding including some grants but they will be not be distributed in the way that they were by the last government.

For further information about this article or raising investment in general call me on 0800 862 0055 or contact me through this form.

LEP Summit: My Impressions of the Day as a Delegate

Yesterday I attended the Local Enterprise Partnership Summit at the Leeds Armouries. As you can see from the programme it was a very long day but also an instructive one. There were said to be over 750 delegates. Throughout the day there was a constantly updated twitter stream which you can find at #lepsummit2011.

Although the focus was on Leeds City Region (an area that includes the five metropolitan boroughs of the county of West Yorkshire as well as Barnsley in South Yorkshire and Craven, Harrogate, Selby and York in North Yorkshire) the summit was important to local enterprise partnerships ("LEP") everywhere. That was no doubt why Mark Prisk MP, the Minister of State for Business & Enterprise, was invited to speak together with representatives of the Manchester, Sheffield and North East LEP, the OECD, the British Chambers of Commerce and the Centre for Cities.

As I have said many times in this and my Inventors Club and IP North West blogs, the LEP represent a sea change in regional development For as long as I can remember regional development strategy of both major parties has taken the form of handouts from central government for big infrastructure projects such as motorways and universities usually administered by quangos in the hope that they would stimulate enterprise. And it just hasn't worked. As I observed in my question in a breakout session on infrastructure on what can we do to encourage a "Silicon Roundabout" in Yorkshire along the lines of the one in Old Street, businesses will cluster where they see advantages in clustering and not where well-intentioned planners want to put them.

The reason why the traditional strategy does not work was explained by Dr Enrique Garcilazo of the OECD. It is ironic that it took an economist from Paris to explain the reasoning behind LEPs rather than the Minister and the massed ranks of local and national politicians. Dr Garcilazo is author of the OECD publication "How Regions Grow: Trends and Analysis". Briefly, his research shows that central government spending on infrastructure and human capital development (education and training) in isolation are not enough to stimulate enterprise. If you build a motorway to a depressed region as was done in Southern Italy you simply make it easier for people to get out. Similarly, if you improve the education system without creating employment or business opportunities they will just find it easier to get jobs in places like the South of England or Northern Italy. There has to be a systematic and holistic approach to local development best managed from the bottom up that utilizes the competitive advantages of each region.

That seems to be the thinking behind the Leeds City Region plan which was unveiled at the conference. It is perhaps best summarized in the following passage from a handout to delegates:

"The LEP will lead a cross-sector, balanced approach to economic growth, and will build on the unique combination of city region assets to unlock the potential of our economy, businesses and workforce."

The handout outlined 4 priorities for the LEP:

• unlocking the growth potential of business and enterprise;
• enabling a flexible, skilled workforce;
• facilitating a low carbon economy; and
• creating the environment for growth.

The LEP aims to achieve a minimum of 2.6% GVA (gross value added) growth every year to 2030 and a return to pre-depression levels of employment by 2016.

Of course, these are very fine aspirations but they can be achieved only if businesses actually find a market for their goods and services. Mike Spencer, Senior Policy Adviser to the British Chambers of Commerce, displayed bar charts that showed that consumer and government spending had more or less flatlined since the start of the current downturn. Mr Spencer reasoned that if there was to be any growth it would have to come from exports. As the USA and EU were doing no better than us we have to sell more to Brazil, India and China. I mischievously asked the panel what exactly suppliers in our region had to sell to consumers in Bahia, Bangalore and Beijing. Neil Mclean the LEP Chair suggested biotech and IT. Mark Ridgway of the Rhodes Group mentioned all the things that his company did in India. The fact is that Yorkshire and Humber does not seem to do as well as other regions when it comes to developing new technologies with just 1,144 patent applications in 2010 trailing the South East with 2,810, London (2,584), East of England (1,984), South West (1,639) and the North West (,246) (source IPO Facts and Figures 2009 and 2010).

While all credit is due to Mr McLean and his fellow board members for staging this event I left feeling that they had a mountain to climb. One of the first questions in the manufacturing breakout section was "What about old technology?" Other questions were on what can be done to make the NHS buy from local suppliers. I had to intervene to point out that we were in a single European market and indeed a single national market where everyone was entitled to a fair crack of the whip. I detected more than a whiff of protectionism in the air.

Another depressing theme was inter-regional rivalry and dependency on London. One gentleman from the floor asked when Leeds-Bradford airport would restore its link to Heathrow. There is already a major international airport at Ringway connected by a direct rail service and the M62 motorway to most parts of Yorkshire. There are some things such as airports that are best done on a Northern and not just City Region basis. I think our LEP Board realizes that which is why they invited representatives from the other regions.

Overall I hope this project works and in my own small way I shall do my best to help it along the way. Over drinks after the conference, I met several of the young men and women who had been seconded by local authorities and businesses to work for the LEP secretariat and was very impressed by their quality and enthusiasm. I hope I am no sycophant but I am also genuinely impressed by the members whom I have met over the last 6 months such as Neil McLean and Mehboob Khan from Leeds and Philip Bartey and David Grey of Sheffield. They give their time to this project for nothing for which they deserve our gratitude. I just wish there were more representatives of the communities that they serve.

Sheffield Hallam University Enterprise Centre

Sheffield has two great universities:

• the University of Sheffield, and
• Sheffield Hallam University.

Sheffield Hallam University's Enterprise Centre is literally just across the road from Central Library which hosts Sheffield Inventors Group. Hallam has an enormous pool of expertise ranging from Arts and Humanities to Transport and Logistics.

Yesterday the Inventors Group welcomed Heath Reed from the University's Art and Design Research Centre and its designfutures consultancy to talk about how Hallam can help inventors, start-ups and other small and medium enterprises. They seem to have done some work for Andrew Jones one of Huddersfield's institutions. To read more about Heat's talk, see my article "Sheffield Inventors Group: A Link with Hallam" in my Inventors' Club blog.

Pork pie packaging is just one example of Hallam's expertise. To find out more it is worth checking out the Innovation Futures page on its website. Some of their research and consultancy work may be funded.

News of LEPs in Yorkshire and Humber No. II

I see to my horror that I have not updated this blog since 27 July 2011 though I did publish IP Yorkshire, the Yorkshire and Humber newsletter, on Yorkshire Day which falls on 1 August. A lot has happened since then.

Humber LEP

First a proposal by a consortium of local authorities and local businesses and business organizations for a local enterprise partnership for the Humber has been accepted. You can see the press release on Hull and Humber Chamber of Commerce website. According to its proposal the LEP will:

"Co-ordinate public and private sector activity that is targeted at growing our three key growth sectors (renewable energy, ports and logistics, and chemicals), with the aim of developing an international-scale super cluster around the Humber.

Lead on 16-19 and adult skills strategy, particularly in relation to the key sectors listed above, to ensure that as many of the jobs created as possible can go to local people, businesses can recruit the workforces they need to expand, the aspirations of young people are raised and graduate retention is improved.

Take responsibility for the “Humber brand”, co-ordinating and promoting our offer for international trade and as a location for investment.

Lead on international trade issues to help more companies export their goods and services.

Lead on co-ordinating and identifying strategic transport and infrastructure priorities that will support economic growth.

Co-ordinate activity that supports innovation and enterprise.

Bring together partners where appropriate to bid for public and private sector contracts and funding.

Submit a bid for an Enterprise Zone in the Humber and explore any other opportunities that arise from new Government policy."

According to Lorna Gibbons, Senior Economic Development Officer at Poole Borough Council who keeps the superb Economic Development blog, the contact for the Humber LEP is Mr. Richard Kendall Tel 01484 324 976 Email r.kendall@hull-humber-chamber.co.uk (see "Everything you need to know about each LEP ..... contact and priorities (where available)"). I have also found a website for the LEP at http://humberlep.org/. Their postal address is 34/38 Beverley Road, Hull, HU3 1YE and their twitter feed is @humberlep.

Enterprise Zones

The last of the bullet points on the Humber LEP's to do list was to submit a bid for an enterprise zone in the Humber and that seems to have been approved within a week of being submitted (see the press release of 17 Aug 2011 on the chamber website and the announcement on the LEP site). The site will cover 375 hectares on 3 sites: Green Port (Alexandra Dock) and Queen Elizabeth Dock in Hull and the Able Marine Energy Park in North Lincolnshire. The sector focus will be on offshore wind OEM and it is hoped to generate 4,850 jobs in the zone by 2015. There will be £7.9 million is business rates savings.

There will also be enterprise zones in Leeds (142 hectares in the Lower Aire Valley) where it is hoped to 4,000 new jobs in low carbon industries and modern manufacturing (see "Leeds Enterprise Zone: Full Details" in Real Business) and Sheffield in the "Modern Manufacturing and Technology Growth Area" where it is hoped to create 12,600 jobs (see "Sheffield Enterprise Zone: Full Details" in Real Business).

For updates see Lorna's post "Enterprise Zones Update" of 15 Aug 2011 and the Communities Department's LEP and enterprise zones map.

Leeds LEP Summit

Leeds LEP will hold a one day summit to shape the Leeds City Region economy at the Royal Armouries on 9 Sept 2011. I have registered the course and will blog about it next week. The programme looks very interesting.

Other Articles

21 Oct 2010 "LEP begin to take shape"

30 Oct 2010 "Government's Strategy on Growth published at Last"

12 Jan 2011 "News of Yorkshire LEPs"

1 Feb 2011 "Leeds LEP Board Members"

21 March 2011 "New LEP for York and North Yorkshire"

12 April 2011 "Sheffield LEP: NAMTEC Questions and Answers"

9 June 2011 "Local Enterprise Partnerships: A Great Resource"

Beer and Trade Marks: Samuel Smith v Lee

"This is a case about Yorkshire pride, in more ways than one" said Mr. Justice Arnold in the first sentence of his judgment Samuel Smith Old Brewery (Tadcaster) v Lee (t/a Cropton Brewery) [2011] EWHC 1879 (Ch) (22 July 2011). He continued:

"The protagonists, Samuel Smith and Cropton Brewery, are two proud, small, independent Yorkshire breweries. There is no dispute about the quality of their respective beers. The casus belli is Samuel Smith's claim that Cropton Brewery has infringed Samuel Smith's registered trade mark for a stylised white rose device, and committed the tort of passing off, by use of labels incorporating two similar stylised white rose devices. For the uninitiated, a white rose is the traditional symbol of the county of Yorkshire, having been the emblem of the House of York during the Wars of the Roses. The dispute is one which ought to have been capable of settlement out of court a long time ago. Instead it has grown into a case which is out of all proportion to what is at stake in commercial terms. One explanation for this is Yorkshire pride; but I fear that the English legal system bears a measure of responsibility as well."

The causes of action were trade mark infringement and passing off. There was also a counterclaim for groundless threats under s.21 of the Trade Marks Act 1994.

The Trade Marks

The claimant company had registered two trade marks but the one around which this case revolved was 1,006,571 for beer in class 32. Its other mark was 2,005,780 in respect of "draught and bottled beer, all brewed in Yorkshire" in Class 32. Although that mark had been pleaded the judge made no further reference to it in his judgment.

The Alleged Infringements

Mr. Lee, the proprietor of Cropton Brewery had produced two labels to which Samuel Smith objected. One was for "Yorkshire Bitter" distributed by Marks and Spencer shown to the left.

The other was "Yorkshire Warrior" which was marketed partially to raise money for the benefit of troops serving in the Yorkshire Regiment shown below.

The Arguments

The claimant complained that the "Yorkshire Bitter" and "Yorkshire Warrior" labels infringed its trade marks under art 5 (1) (b) of the Trade Marks Directive (that is to say s. 10 (2) of the Act) and also art 5 (2) or s.10 (3) and that such use also amounted to passing off. The defendant argued that the white rose elements of the signs complained of are "indications concerning the … geographical origin" of the goods, namely Yorkshire. The threats were alleged to have been contained in letters to Marks & Spencer from the claimant's trade mark agents and solicitors on 10 Dec 2007 and 7 July 2010 respectively.

Decision

Mr. Justice Arnold held that:

(1) The "Yorkshire Bitter" label did not infringe Samuel Smith's registered trade mark;

(2) The "Yorkshire Warrior" one did, but

(3) Mr. Lee had a defence under art 6 (1) (b) of the Directive or s.11 (2) of the Act in respect of its use before the end of October 2009 but not afterwards;

(4) the use of the "Yorkshire Warrior" amounted to passing off though the use of the "Yorkshire Bitter" one did not; and

(5) the counterclaim failed because the defendant had not been a person aggrieved in respect of the first letter and the second letter did not amount to a threat.

How the Judge reached his conclusions

Throughout his judgment, his lordship referred not to the Act but to the EU legislation that is implemented by the Act. He probably did that as he directed himself in the principles derived from the well known decisions of the Court of Justice of the European Union on all the points that were before him. These are so well known that it would be otiose to repeat them but if anybody wants to look them up those on the art 5 (1) (b) or s.10 (2) point start at paragraph [76], those on art 5 (2) or s.10 (3) at paragraph [107] and those of the art 6 (1) (b) or s.11 (2) defence at paragraph [111].

As to why "Yorkshire Bitter" did not infringe, he said this at paragraph [105]:

"So far as Yorkshire Bitter is concerned, the identity of the goods and the distinctive character of the Trade Mark favour a likelihood of confusion, but the differences between the white rose device and the Trade Mark, the remainder of the sign and the identification of Cropton Brewery as the producer on the front of the label all militate against it. Samuel Smith has not adduced any evidence of weight to demonstrate a likelihood of confusion. Samuel Smith's dilatoriness in pursuing Marks & Spencer and Cropton Brewery over the matter suggests that it did not consider that there was a real likelihood of confusion. I infer that Yorkshire Bitter was only included in the case because Samuel Smith thought it would look odd to pursue Yorkshire Warrior without pursuing Yorkshire Bitter. Be that as it may, the evidence of experience strongly suggests that there is no likelihood of confusion. Overall, I am not persuaded that Samuel Smith has established that there is a likelihood of confusion."

As to why "Yorkshire Warrior" did, he said at [106]:

"Turning to Yorkshire Warrior, the identity of the goods and the distinctive character of the Trade Mark again favour a likelihood of confusion. In this case the white rose device is more similar to the Trade Mark, and it is more a dominant element of the sign, than in the case of Yorkshire Bitter. Importantly, Cropton Brewery is not identified as the producer on the front of the label. Furthermore, I think many consumers would miss the small print identifying it on the rear of the label. The evidence of the three independent witnesses considered above is some evidence of a likelihood of confusion, although not strong evidence. As I have explained, there is also the evidence of how Yorkshire Warrior has been sold in at least one retail outlet. Although there is no evidence of actual confusion in practice, for the reasons given above it is more difficult to place confidence in this as showing there is no likelihood of confusion than in the case of Yorkshire Bitter. In my view the majority of consumers will not be confused. Overall, however, I am persuaded that there is a likelihood that some consumers will be confused into believing either that Yorkshire Warrior is a Samuel Smith product or that it has some other connection with Samuel Smith."

The art 6 (1) (b) defence requires "use is in accordance with honest practices in industrial or commercial matters." The Yorkshire Warrior label is based on the cap badge of the Yorkshire Regiment which the defendant honesty and reasonably thought he had been licensed to use but on 22 Oct 2009 the colonel of the regiment asked him to stop.

As to passing off, the absence of evidence of confusion scuppered any cause of action in respect of the "Yorkshire Bitter" label but the reasoning set out in paragraph [106] above sufficed in respect of "Yorkshire Warrior".

The reason why the defendant was not a person aggrieved in respect of the first letter is that Marks & Spencer do not seem to have taken much notice of it. They continued to buy "Yorkshire Bitter" for over two years after receiving the letter and did not even pass on the letter to the defendant at first. The second letter went out of its way to assure Marks & Spencer that it did not wish to drag them into the proceedings.

Mediation

The judge's postscript was that in future mediation should be explored for disputes of this kind as soon as practicable. The IPO offers an excellent mediation service as does WIPO and indeed do NIPC. The IPO has listed a whole lot of other mediation providers of whom I am one. Anyone who wants to learn more about mediation and other types of ADR should call me on 0800 862 0055 or contact me through this form.

Mentoring in Yorkshire

On 4 July 2011 the Business Finance Taskforce launched mentorsme.co.uk, an on-line gateway for mentoring services for small and medium enterprises ("SME"). I discussed it in "Oh me. Oh My, I hope the Little Mentor comes by."

One of the menu choices on the home page is "Find the Right Mentor". If you click on that link you find an interactive map of the United Kingdom. I clicked on the map of Yorkshire and the Humber and I found Success Doncaster and Business & Education South Yorkshire.

The website also listed the following national organizations that operate in our county:

• Business in the Community;
• ibd Group;
• Prime Business Club;
• Exigent Mentoring Services;
• The Prince's Trust;
• Institute of Enterprise and Entrepreneurs; and
• horesmouth.co.uk.

The last two organizations are on-line only.

Business & Education South Yorkshire describes itself as "the leading strategic body established to develop education and business links activities in South Yorkshire." It provides companies with a one-stop-shop service for developing links with education.

Success Doncaster is an initiative of Doncaster MBC whose activities can best be discerned from its brochure.

Early days I suppose.

TEDx Bradford - This is Where We Live

Whenever Imran Ali organizes something it is usually very good. He has brought us Open Coffee, Girl Geek Dinners and more good stuff. His latest initiative is TEDx Bradford.

TED stands for Technology, Entertainment and Design. It started from a conference in 1984 and has now become an international institution.

There are annual conferences in the USA and UK to which leaders in any field with something to say are invited to speak. Last Wednesday afternoon for example, we heard from cyber security expert Mikko Hypponen, lie detector Pamela Meyer, anti-torture campaigner, Helen Tse and some really lovely settings of Burn's verse by Eddi Reader. Each of those presentations is videotaped and can be viewed on the TED website. It is also possible to subscribe to the TED website free of charge and I have done just that.

TEDx is an extension of the TED formula. It enables local movers and shakers around the world such as Imran to organize their own events in the TED format. The event that Imran organized took place in the Cubby Broccoli cinema of the National Media Museum in Bradford. Its title was "This is Where We Live". The event stretched over the whole day. In the morning and afternoon we were connected by video link to TED Global Edinburgh.

From 17:00 we had our own programme with live speakers in the auditorium. They were all good but I particularly liked Mohammed Ali who has melded Western street art with Islamic calligraphy. His presentation went much further than that however. He showed photos from Australia, Germany and other countries of buildings that showed the influence of Islamic architecture long before those countries had significant Muslim communities. But what pulled me up with a jerk was something his father said. "Son, one day people like us may be forced out of the country". One of my other friends had also said something like this. I find it very sad that people who are my friends and neighbours have this threat at the back of their minds. I don't think it will ever happen but a slide of the English Defence League has made me start to worry.

But there were happier topics. Tom Wooley talked about the internet museum that he is planning for the Media museum. Emily Kecic spoke with passion about her pride in Bradford and at her disappointment at Bradfordians who claim to come from Leeds. The one talk I really wish I could have heard was historian and anthropologist Irna Qureshi's as I have also travelled a few kilometres along the Grand Trunk Road. Alas, I had tickets for Hull Truck's production of the "Lady in the Van" at the Alhambra, another great Bradford institution.

It probably takes an outsider to say this but Bradford is a great city. In my humble opinion it's as least as good as Leeds. Though my maternal family comes from Leeds I think I like Bradford even better.

Links

16 July 2011 Jane Wakefield TEDGlobal: Worshipping at the Church of TED BBC website

Angel Networks in Yorkshire

An "angel" is a wealthy individual who invests in start-ups and early stage businesses. The term probably comes from the stage. It is an actors' reference to those who support new productions and, thus, thespian livelihoods, as in: "Oh, you are such an angel, darling." According to the Annual Report on the Business Angel Market in the United Kingdom: 2009/10 published in May 2011 there were about 4,544 members of angel networks in the UK in 2010. They fill a gap between friends, fools and family who tend to provide seed funding and private equity and venture capital investors.

Why People become Business Angels

Unlike theatrical angels who were attracted as much as anything by the smell of greasepaint and the thrill of attending a first night without any expectation of every seeing their money again, business angels expect a healthy return. According to Professor Robert Wiltbank who wrote "Siding with the Angels" , a research report published by NESTA (National Endowment for Science, Technology and the Arts) and the British Business Angel Association ("BBAA") in May 2009, British business angels are attracted by such tax schemes as the Enterprise Investment Scheme ("EIS") and the enterprise management incentives ("EMI"). Others relish the challenge of a second or subsequent career in a new business having made their pile in a previous one. Yet others who attribute their success to a mentor or investor in their own businesses say they wish to give others a start or put something back into society. Yet others have seen their fellows do well out of investing in a new company and decide that they could do likewise.

Angel Networks

In recent years some but by no means all angels have begun to flock into networks that prepare and present new investment opportunities to their members. Those networks do not usually make investments of their own or even advise angels on individual investments. The decision whether or not to invest is left to each individual investor. The networks screen and filter the proposals, offer some education and training in investment to their investing members and probably, most importantly, put investors in touch with each other so that they can compare experience. Some of those angel networks are national such as Advantage Business Angels and Beer and Partners. Others are local such as YABA (the Yorkshire Association of Business Angels) in Yorkshire and the Humber. Our chambers through the NIPC Inventors Club is compiling a list of business angels broken down by region and function.

Approaching Business Angels

There are several ways of approaching business angels but the way that I would recommend is through at least one of the networks. It is in your interest as well as the networks and their members to read everything that appears on the website before picking up the phone or filling out the contact form. Most carry information that is very useful to entrepreneurs. I would commend in particular YABA's business plan template. Another way is to seek an introduction through an intermediary. I have been known to do that though I usually refer clients to an accountant, solicitor or other professional first. yet another way is through a network that enjoys good links with angels such as Connect Yorkshire, Bmedia, the Leeds or Sheffield inventors clubs or Gumption Networking. Angel News circulates proposals to subscribers and I have even seen a postcard bulletin board at the Said Business School during the Oxford Venturefest.

What happens next

If a network is prepared to present your scheme to its members the next stage they may offer help in refining your business plan and preparing your pitch. If they think you need professional help they may introduce you to one of their associated law firms, patent agencies, product development consultants or accountancy practices. And then they will invite you to pitch. To give you some idea, one that I attended a few years ago took place at a university staff club. After a good buffet lunch we were offered four short presentations on propositions ranging from a new age magazine to opera in the workplace after which investors were invited to talk to the entrepreneurs individually in an exhibition area.

Further Information

If you want to know more about angel investment you could do worse that read my article "On the Side of the Angels" and "Where are you going to get funding?" and the introduction to funding and angels on our Inventors Club website. So far have only got details of two angel networks for Yorkshire and the Humber (namely YABA and South Yorkshire Business Angels) but several national networks such as Angels Den and Beer & Partners have local representatives in our county.

We are also getting to know angels both within and outside the angel networks so you can also call us on 0113 320 3232 or through our contact form. We advise, assist and represent both angels and investors on issues relating to legal and technology issues and we have a network of colleagues with world class expertise from the Bar and other professions who can assist with all company formation, investment, patent, design and trade mark registration, product design and development and taxation including EIS, EMI and the patent box concessions.

Design Right: Albert Packaging Ltd. and Others v Nampak Cartons & Healthcare Ltd.

I've mentioned Judge Birss QC's judgment in Albert Packaging Ltd and Others v Nampak Cartons & Healthcare Ltd [2011] EWPCC 15 (2 June 2011) in IP Yorkshire because the defendant company is based in Leeds and was represented by a local law firm. This is an important case because it illustrates the limits of design right as a means of protecting investment in technology.

Why this case is important

In the last sentence of his judgement the learned judge held that the claimants had unregistered design right in the shape of their product in their assembled form and that it was "more likely than not" that that product was at least one of the sources of ideas for the defendant's products yet he found for the defendant. How could that be since s.226 (1) (a) of the Copyright Designs and Patents Act 1988 confers the exclusive right to make articles to a design on the owner of the design right? The judge's explanation was as follows:

"Design right is a right to restrain reproduction of the design by making articles to the design. That means copying the design so as to produce articles exactly or substantially to that design. When it comes to comparing the article alleged to infringe with the claimants' design in a case like this one, in which it can be seen that the article was in fact derived from multiple identifiable sources, it must be necessary to identify how much of the design of the article in question can be said to derive from the claimants' design."

He concluded that what the defendant's product owed to the claimant were the dimensions of the article which was not a substantial part of that design. To have found infringement given that all that had been derived were dimensions would have given design right to something that was no more than a method or principle of construction.

Method or Principle of Construction

I have italicized the words method or principle of construction because s.213 (3) (a) of the Act excludes those attributes from design right protection. There had been a corresponding provision in s.1 (1) (a) of the Registered Designs Act 1949 before the Registered Designs Regulations 2001 but there were not many cases on the point as it was rarely argued. The case most frequently cited was Moody v Tree (1892) 9 RPC 333 where Mr. Justice Vaughan Williams held that the pattern of a basket consisting of the osiers being worked in singly and the butt ends being outside could not be registered as a design. This case will be remembered for Judge Birss QC's explanation of the above italicized words in the context of unregistered design right.

Idea/Expression Dichotomy in Design Right

At paragraph [18] of his judgment, His Honour referred to the claimant's submission that

"although designs that serve purely functional purposes are not denied protection, it is important when identifying the aspect that is relied upon to have in mind that design right does not protect ideas per se (in the way a patent might) even though these ideas might have been important in arriving at the design in question."

He accepted that submission adding

"Design right only protects aspects of the actual physical manifestation of an idea."

Relying on Mr. Justice Mann's dicta in Rolawn Ltd and Another v Turfmech Machinery Ltd [2008] EWHC 989 (Pat) (7 May 2008) that "what is protected from copying in design right cases is the design, meaning the physical manifestation" and "not some underlying abstraction" and Lord Justice Neuberger's in Landor & Hawa International Ltd v Azure Designs Ltd [2006] EWCA Civ 1285 (28 July 2006) the judge propounded the following test:

"If it is possible to get several different appearances, which all embody the general features which he claims, then those features are too general and amount to a method or principle [of construction]. In other words, any conception which is so general as to allow several different appearances as being made within it, is too broad and will be invalid."

Comparative lawyers will immediately see the similarities between this and the somewhat cumbersome abstraction/expression filtration test in US copyright law best exemplified by Computer Associates International Inc. v Altai Inc. 982 F2d 693 (1992).

Is Design Right worth Having?

At paragraph [20] Judge Birss said

"This exclusion, and the 'interface exclusion', in s213 play an important part in the scheme of the 1988 Act by ensuring that design right provides a suitable amount of protection without unfairly restricting fair competition."

He is of course right but was that the intention of Parliament? In the white paper Intellectual Property and Innovation (Cm 9712) the government of the day considered whether a copyright based approach or utility models would best protect small businesses' investment in technology and design and opted for the former. Significantly, its example was followed by none of the other common law countries that had previously protected industrial designs by artistic copyright. Australia has opted for "innovation patents" and the Republic of Ireland for short term patents. With these and the other exclusions of s.213 (3), the availability of licences of right to anyone in the world including infringers under s.237, the qualification requirements that exclude designers in most industrial countries from protection under the Act not to mention the possibility of a threats action which did not exist under the 1956 Act, there does not seem to be a lot of point to design right. Hargreaves called for a fresh look at design right law (see "Does Hargreaves Say Anything New" IP/IT Update blog 24 June 2010) and on this if on nothing else his review is dead right.