Sony Music vs Noel Redding and Mitch Mitchell

Sony Music have failed in their latest attempt to prevent the estates of Noel Redding and Mitch Mitchell from pursuing their claims for infringement of copyright and performers’ rights to trial.

After the failure of Sony’s attempt to contest jurisdiction and the appeal against that decision, and the failure by Sony’s licensor, Experience Hendrix, to have the case determined in New York, Mr Justice Michael Green today dismissed Sony’s application to strike out the case or for reverse summary judgment.  Following a two day hearing in October 2023, the Judge dismissed all four grounds relied upon by Sony in support of the application, describing one as “unfounded and totally unsuited to an application to strike out”, and stating in respect of another that “the Claimants have a more than arguable case”.

The case will now proceed to trial next year.

Lawrence Abramson of Keystone Law, who represented the estates said “We could not have got a better result.  I am pleased that after almost two years of delay, the case will finally move forward and we can hopefully obtain some justice for the families of Noel and Mitch.  No-one is denying that Jimi Hendrix was one of if not the greatest guitarist of all time.  But he didn’t make his recordings alone, and they could not have achieved any success without the contributions of Noel and Mitch”.

Edward Adams for the claimants said “Noel and Mitch died in penury despite being two thirds of the Jimi Hendrix Experience and owning the copyright in the recordings jointly with Jimi. We see our case as carrying a torch for Noel in particular who spent over three decades seeking justice”.

The estates were represented at the hearing by Simon Malynicz KC and Jamie Muir-Wood of Hogarth Chambers, as well as Bruce Drummond, instructed by Keystone Law.

Swiss watch houses stop Samsung using trade marks on smartwatch “dials”

 

London: 15 December 2023.

The Court of Appeal (Lewison, Arnold, Elisabeth Laing LJJ) today issued judgment in Montres Breguet SA v Samsung Electronics Co Ltd [2023] EWCA 1478. The Court of Appeal dismissed Samsung’s appeal against Falk J’s trial judgment which had held Samsung liable for the watch faces, which took the m form of downloadable apps placed on Samsung’s Galaxy Apps store by third party online sellers. The watch face apps, which recreated real Swiss watch faces in meticulous detail whilst also using the trade mark or similar dial branding, had been downloaded around 160,000 times by Galaxy watch customers.

 

A number of famous Swiss watch brands, including Omega, Longines, Tissot and Swatch, had joined in the trade mark infringement action against Samsung, overcoming Samsung’s defences at trial that the use was not by Samsung and was within the safe harbour defence of “mere hosting” under the UK regulations that implement Article 14 of the E-Commerce Directive.

 

Samsung appealed to the Court of Appeal, arguing that it was being unfairly penalised for putting apps through a screening process before uploading, thereby actively gaining knowledge of their content and that app stores could not function properly if the High Court’s ruling was upheld.

 

Dismissing the appeal, Arnold LJ, held that the use went beyond merely technical, automatic and passive such that the Article 14 defence failed. Moreover the way that the Galaxy App Store presented the apps to consumers did not adequately distinguish between apps supplied by Samsung itself and those supplied by third party sellers. In addition, the post-sale context was relevant since members of the public, viewing the face on a Samsung smartwatch worn by someone else, may regard the use as trade mark use in relation to the smartwatch.

 

Simon Malynicz K.C instructed by Wilmer Hale LLP, leading Geoffrey Pritchard and Daniel Selmi, acted for the successful claimants/respondents to the appeal.

More Nominations for Hogarth

We are delighted to announce that we have been nominated for IT/IP Set of the Year for the upcoming Chambers U.K. Bar Awards 2023.

Simon Malynicz KC has also been nominated for IT/IP Silk of the Year. Congratulations to him from all in Chambers.

We look forward to finding out the results in due course.

 

Look out for your goodwill!

 

The recent decision of Recorder Amanda Michaels in Prysmian v M/S Apple International & Ors (https://www.bailii.org/ew/cases/EWHC/IPEC/2023/2176.html) shows the importance of keeping track on where goodwill is assigned and who owns it. It is common for companies to assign goodwill, whether through a sale or internal re-organisation and unless someone identifies the sources of that goodwill and the various brands generating it, it can be lost or not assigned at all. This is what happened to the Claimant in this case. Complex sale agreements and internal re-organisations failed to include the goodwill for what was once one of the leading brands in UK manufacturing.

 

This case also shows the brutal consequences of goodwill being abandoned. Evidence of reputation and of a fondness for a historical brand does not constitute goodwill. Unless a business is trading using a brand, i.e. the attractive force to bring in custom, the protectable goodwill will be lost.

 

The Claimant’s claims for passing off and registered trade mark infringement were dismissed.

 

Andrew Norris KC and Jonathan Moss appeared for the successful Defendants.

 

 

AIM Sport v Supponer

AIM Sport v Supponor [2023] EWHC 164 (Pat)Edward acted for AIM Sport in their successful patent infringement claim against Supponor. Mr Justice Meade found AIM Sport’s patent to be both valid and infringed.  The claim related to AIM Sport’s technology for virtual advertising in sports stadiums, which allows in-stadium advertising boards to be replaced in live broadcasts overseas with alternative content. Led by Piers Acland KC.

Simon Malynicz KC Re-joins Hogarth Family

Simon Malynicz KC, one of the most highly regarded silks on contentious trade mark matters, is to join Hogarth Chambers from competitor IP set, Three New Square, in what will be one of the biggest Bar moves of the year.

Simon described his move from Three New Square, back to Hogarth Chambers, where he spent the first decade of his career, as “like a homecoming and reunion with the Hogarth family.”

“I had 10 happy years at Three, took silk there and have nothing but gratitude and affection for the barristers and clerks. However, professionally, with the appointment of a number of new silks and talent emerging at all levels at Hogarth, this move feels right.” Said Simon.

David Court, one of Three New Square’s most experienced and dynamic clerks, will also transfer, joining the Hogarth team as a Practice Manager, to maintain the consistency of Simon’s schedule and help manage the growing workload of this flourishing chambers.

“Getting Simon Malynicz back was a real coup for Hogarth and a shrewd move for him. I will miss the barristers and clerks at Three, but I join a fantastic clerking team at Hogarth.” Said David.

Nick Caddick, Head of Chambers at Hogarth said, “We have grown rapidly in recent years and have broadened our IP offering. We are delighted that Simon and David are joining us in that expansion, and in helping us to provide our clients with the best possible service.” Nick continued, “We look forward to the continued growth of Hogarth Chambers. Exciting times!”

Hogarth Chambers is a leading set of barristers specialising in Intellectual Property Law.

Simon’s practice is concerned with all areas of Intellectual Property law, but is best known for his trade mark and branding practice with recent cases such as: Skykick, Swatch/Samsung, Cadbury Purple, Interflora, and Martin v Kogan

 

Queen Elizabeth II – 1926-2022

It is with extreme sadness, but also great pride, that we change our honorary titles from QC to KC.

We pay tribute to the life of our late Queen, Elizabeth II, by supporting the new King, Charles III, and their wider family, during this period of personal and national mourning.

‘Sharing Insights’ – It was great to be back at our first patent seminar since covid

Post Covid we didn’t know what to expect but were delighted by the support we received from the patent world.

Hogarth Chambers would like to extend a big thank you to Albright IP LimitedAllen & OveryBarker Brettell LLPBird & BirdBristows Law FirmBrowne Jacobson LLPCarpmaels & RansfordClyde & CoDehnsDummett Copp LLPElkington + FifeFieldfisherHGF LimitedHill Dickinson LLPJones DayKeltieKirkland & EllisLambert Hornby LimitedMathys & Squire LLPMewburn Ellis LLPMichelmoresMishcon de Reya LLPOPENSHAW & CO. LIMITEDPinsent MasonsPOTTER CLARKSON IP LIMITEDPowell Gilbert LLPShakespeare MartineauTrowers & HamlinsVenner Shipley LLPWithers & Rogers LLPWP THOMPSON LIMITED and many many more.

We caught up with the latest insights from the patent world with talks from Edward CronanRichard Davis, and Jonathan Moss and then enjoyed champagne and stunning views from the top of the Royal College of Surgeons in great company.