Linkomanija user lives to fight again

"First case against torrent search engine user fails", by Edita Ivanauskienė and Julius ZaleskisLideika (Petrauskas Valiunas ir partneriai LAWIN), was published last month in International Law Office. You can read it here. This article describes Lithuania's first-ever copyright infringement case against a user of a torrent search engine. This action, in which ANVA, the Lithuanian Anti-piracy Activities Association, sought a ruling of administrative liability against a user of Linkomanija, Lithuania's biggest torrent search engine, was apparently dismissed on what were mainly procedural grounds relating to the collection of evidence.

Actions against internet users for copyright infringement have been possible since Lithuania's Code of Administrative Infringements was amended last year, extending the scope of the earlier provisions which could only be invoked against infringements perpetrated for commercial purposes. In cooperation with the police, the association tracked the internet protocol addresses of 106 Linkomanija users who were downloading and seeding the Microsoft Windows 7 operating system. Based on this information, the police issued a statement of administrative infringement against one of the users.

The Kaunas Regional Court, referring to principles of legality and Supreme Administrative Court case law on the collection of evidence, ruled that there was no evidence that the association, as a public institution, was authorized to collect evidence independently, and no information had been provided as to whether the equipment used to track copyright and related rights infringements by internet users was officially certified. Accordingly the defendant's activity had not been shown to amount to an administrative infringement and the case was dismissed. This decision is under appeal.

Copyright preassignment contract can drive you to drink ...

Here's some news from Lithuania about an unintended consequence of a contract for the pre-assignment of a copyright.

The plaintiff was a well-known Lithuanian politician who was involved in the impeachment of the  former President. Throughout her political career she had been particularly famous in the media as being associated with a special cocktail of brandy and coffee; the public had come to associate this cocktail with her name of the plaintiff. The defendant subsequently registered a trade mark for brandy which was identical to her forename.

The plaintiff sued for invalidation of the trade mark registration since it amounted to the use of her name without her consent, the application being made in bad faith. The district court dismissed the claim and the plaintiff appealed unsuccessfully to the Court of Appeal which held that, though the trial court erred in law, it got the right result.  It noted that the parties had entered into a copyright agreement, under which the plaintiff undertook to create the label for brandy produced by the defendant and to transfer to the defendant the copyright in that label, as well as any trade marks created in the process of performing the agreement. 

According to the court, this agreement should be interpreted as consent from the plaintiff to use her name in the trade mark.Even though the copyright agreement was signed after the defendant had filed the trade mark application -- and consent was therefore given only after the trade mark had been registered -- this did not invalidate the trade mark registration. And since the plaintiff had consented, the trade mark neither infringed her rights nor was made in bad faith.

Source: "Copyright Agreement Constitutes Consent to Name Trademark", by Rūta Pumputienė (Lideika Petrauskas Valiunas ir partneriai LAWIN), International Law Office.