Auto news from Belgium

We are grateful, as always, to play Boswell to Intellectual Property's own Dr Johnson, Peter Groves, for steering us to NautaDutilh's report of their success in enforcing copyright in Belgium in respect of car spare parts.  If anyone has more details of the case, please post a comment - sounds interesting.
Another reminder of the curious state of affairs by which the EU Design Directive requires European States to provide copyright protection for designs, without harmonising such copyright protection either with that of other States or with design law.  The result is that parts which could not be protected by copyright in the UK, or by Community design right in Belgium, can nonetheless obtain copyright, for perhaps as long as 70 years after the death of the "artist" (whoever that might be in this case).
On the general theme of copyright, it surely cannot be long now before the UK Supreme Court hands down its decision in the Lucasfilm v Ainsworth Star Wars case.  Watch this space - we will keep you posted.
Finally, since we are plugging NautaDutilh, our congratulations to Professor Charles Gielen for his elevation to Officer of the Orange Order.  We don't know whether orange trousers are part of the regalia - if so, perhaps best to avoid the footie!  Amongst Charles' many services to the industry is his editorship (together with Verena von Bomhard) of the long-awaited, and now hot-off-the-press, text Concise European Trademark and Design Law - recommended for your design law bookshelf.

S T R E T C H E D credibility

It is one thing to rip off a competitor.  But filing your own lookalike design in their home market surely stretches the bounds of credibility.  We are indebted to Dr Mark Schweitzer, of Meyer Lustenberger (sorry, "meyerlustenberger"!) and even more so to Mareike Hunfeld of Hogan Lovells, for drawing our attention to German Federal Court of Justice Decision of 22 April 2010, I ZR 89/08 (Stretched limousines).  Here is a link to the excellent Hogan Lovells newsletter report of the case.
By a spooky coincidence it features the S Class stretch limo, which we covered incidentally in our "leaks" posting last week.  However, that posting concerned the updated S Class.  The German case concerned infringement of the original S Class stretch limo registration, RCD 000173166-0007.  This was applied for in May 2004 under "deferred publication" to keep it secret until the 2005 launch.  It must therefore have surprised DaimlerChrysler to see that Centigon, a competitor for limos and armoured vehicles, had applied in January 2007 to register pretty much the same thing as German design 40700389.  Perhaps unsurprisingly they sued for infringement, and, perhaps unsurprisingly, they succeeded.  The prior art cited included Daimler's own earlier models, but they overcame the kind of issues that sunk them in Sweden back in the day, and were upheld on validity. 
We have suggested several times recently that design infringement is on the up in the auto market, see here and here.  So far, the automakers seem to be winning these spats, where they have registered their designs. 

Bloggers or Blaggers? Stalkers or Leakers? Have OHIM stolen Europe's Auto Secrets?

There is nothing the auto industry enjoys so much as the razzamatazz of a new car launch.  Yet as mass expulsions remind us of the spy era, there are rumours that OHIM has a mole, who leaks new car designs to auto bloggers.  "It's no great secret that the European Union's patent office has more leaks than a Soviet submarine" writes Noah Joseph of Autoblog, according to whom OHIM "has more leaks than a colendar".  Alex Ricciuti of  Worldcarfans  claims to be publishing pictures "... courtesy of a leak from the European Office for Harmonization of the Internal Market (OHIM), where trademark records are kept."
Rather than take these alarming claims at face value, in this blog-eat-blog world a few quick searches enable us to reveal the truth.
Take first Ricciuti's claim to have published leaked designs of the Opel Ampera.   His blog article is dated 18th February 2009.  However, the pictures he shows had already, quite properly, been published by OHIM several days earlier on 11th February as RCD 001086300-0001.
On to Autoblog (motto: "We Obsessively Cover the Car Industry").  On August 13th 2008, Noah Joseph claimed that the "EU Patent Office" had leaked the design of the restyled Mazda MX-5.  In fact, OHIM had published the design on 11th August as RCD 000977384-0001.  Autoblog revealed the design of the Suzuki Kizashi on 11th September 2008, acknowledging their source as OHIM's records, and not at that time claiming that there had been a leak.  OHIM had published the design in question the previous day, as RCD 000990122-0001.  On 18th January 2009, they broke news of the design of the Nissan 370Z Roadster, Joseph this time claiming that it was from an OHIM leak.  In fact, lower down the article they quote their source as The Motor Report blog, on which the relevant article (also of 18th January) cites OHIM but does not claim a leak.  And, indeed, OHIM had published the design as RCD 001030282-0002 on 14th January.
Joseph's "Soviet submarine" claim was made in the course of his disclosure of the design of the "stretch" Pullman Mercedes reported on 4th May 2009.  But, as you are by now no doubt expecting, OHIM had published the design as RCD 000999024 (several parts) on 30th April.
In the same article, Joseph referred back to the Nissan Roadster "leak", and one other, dated 11th August 2008, concerning the "facelifted" Mazda 3.  The Mazda 3 article quotes as its source an article on the Carspyshots blog.  OHIM appears to have published the design in question as RCD 000974795-0001 on 6th August. 
Putting these claims together, there is no evidence that anyone has published OHIM applications before OHIM itself has done so.  On the other hand, there is ample evidence that the blogs are closely monitoring publications in the car class (Locarno class 12.08) and publishing within a few days, or even hours. Foremost is Autoblog's  Alberto Ballestin, who has an OHIM watch page.   One could be forgiven for assuming that they were tipped off in advance, but the evidence does not require that assumption.  Unless Joseph or Ricciuti care to reveal their sources, it seems likely that they are simply passing off stalking as leaking.
To take one last example, on 13th July, the Carscoop blog published an article disclosing some Chevrolet designs.  OHIM had published these on 12th July, as RCD 001729088-0001 & 2.  The filing date was ... only five days earlier, on 7th July.  
The moral?  OHIM is now publishing e-filed applications in a matter of days.  Carmakers who want to keep their designs under wraps would do well to use OHIM's "deferred publication" system, to keep the publication date in their own hands.

X5 and CEO – Are they still riding side by side?

Design fetishists and car maniacs will certainly remember those puzzling news from Munich and Turin, with the Munich District Court (Landgericht München I) confirming a claim for design infringement raised by the famous – Munich based (!) – car factory BMW against the Chinese version of its X5 model called CEO, while the Turin District Court (Tribunale di Torino) had dismissed the very same claim against the very same contested design a few months earlier. The truth is that both courts addressed validity but draw deviating conclusions. While the Italian court found the ML novelty-destroying over the X5, the Munich judges did not. The defendant – the German importer – appealed to the Munich Appeal Court (Oberlandesgericht München). After a hearing on May 14, 2009, it took quite a while for the court but now the dismissal of the appeal has become public. Good news for BMW: X5 apparently does not infringe ML but CEO still infringes X5!
Since the first generation of the X5 is protected only by German national and corresponding Hague designs (not: Community designs), the Munich Appeal Court couldn’t render a Europe-wide ban on the CEO. Hence, BMW will have to go on a country-by-country ride and attack the CEO wherever a judge will be prepared to grant injunctive relief …