lookalike cases in europe · replies (to spec invitations) 7 response rate response rate58% private...

© R.H.Pitkethly 2010

Dr. Robert Pitkethly

A Pilot Survey

Lookalike Cases in Europe


Objectives •  Overall

“To investigate how procedural complexities and costs are affecting rights owners in the UK” (in relation to Lookalikes)

•  Pilot Survey

Testing: Survey feasibility Questions Response rates Low Cost : Initially only 2 days work was budgeted for….

(subsequently increased to 3 and in practice took longer)


Questionnaire Surveys


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Survey Options - I Postal

•  Need for only basic Postal Addresses – easily available in Company databases •  Individual questionnaire postage costly •  Reminders’ postage costs are expensive •  Slow

Web Based •  Need for Individual Email Addresses – may be time consuming to find •  Individual questionnaire delivery costless •  Reminders’ marginal costs are almost zero •  Fast

Telephone (e.g. CATI) •  Time consuming – interviews / transcription|abstracting /analysis

These are not mutually exclusive options – they can usefully be combined


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Survey Options - II Industry Wide Estimates

•  Accuracy and Detail required determine target number of respondents •  Response Rates determine number of invitations/questionnaires to send

EG Surveys regarding whether to choose A or B and expecting a 50:50 split

Political Opinion Poll: UK Population : 62m Accuracy : +/- 3% with 95% confidence Sample required = 1067 If Response Rate : 2% Would need 53,350

Questionnaires IP related Survey:

UK Patent Attorneys: 1800 Accuracy : +/- 3% with 95% confidence Sample required = 670 If Response Rate : 8% Would need 8,375

Questionnaires If sent to all 1800, 8% response rate would give 144 replies => +/- 7.8% with 95% Conf.

Populations and Response rates may limit achievable accuracy


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Survey Options - III Languages

•  One Language – English?

•  Translations? •  Need for back translation / review by bilingual potential respondents

Reminders

•  Successive reminders roughly double the number of responses (at least for the first 2-3 reminders)

•  Telephone follow-up including a key question can boost critical response rates but requires i) individual phone numbers ii) extra time.

Timing

•  Holiday periods – allowing time for reminders


Lookalike Pilot Survey


Lookalike Pilot Survey

•  High Speed / Low Cost

•  Web Survey invitations in English sent to limited convenience sample of known respondents by email and followed up with reminder emails

•  Tailored questionnaires for Industry & Private Practice

•  Aims: •  to prove concept: Test response rates/questions

Identify likely major trends (but not to achieve a given level of accuracy at this stage)


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Sampling & Response Rates Industry: 11

Belgium 1 Denmark 1 France 1 UK 5 USA 3

Specific Invitations Sent 12 Replies (to spec invitations) 7

Response rate 58%

Private Practice: 11 Denmark 1 France 1 Italy 1 Netherlands 1 Poland 1 Spain 1 Sweden 1 UK 4

Specific Invitations Sent 25

Replies (to spec invitations) 10

Response rate 40%

Invitations sent to convenience sample of IPI related contacts and AIM’s Trademark Committee members

A larger survey should achieve statistically reliable results


Pilot Survey Results


Private Practice


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PP Questions - 1

Even the 11 private practices in this pilot study represent considerable experience of lookalike litigation

Q.3. Please estimate the number of disputes over the last 5 years where :

Your firm represented a complainant (plaintiff) seeking a legal remedy against a lookalike product: TOTAL = 158

Your firm represented a defendant company in a legal claim in which remedies were sought against a lookalike product TOTAL = 52


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PP Questions - 2 Q.4. How many WEEKS on average, from the date lawyers are initially

instructed, would it take to obtain a PRELIMINARY injunction in a legal proceeding against a lookalike product (excluding any appeal proceedings).

UK replies seem to suggest greater variation


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PP Questions – 3 Q.5. What features of your domestic legal procedure tend to lengthen or shorten

the time taken to obtain a PRELIMINARY injunction in such a case? The following are selected quotations from replies – bold emphasis added: Italy “The length depends on the agenda of the judges of the IP Specialized court having venue. Some judges and some

courts are quicker than others”

Denmark “Lengthen: Bailiffs courts tend to be unwilling to "wind up preparations" and instead let the parties request postponements for various unfounded reasons. It is easy for a defendant to drag time. If independent expert opinion is required by the court, this will drag time as well.”

Sweden “When granted by the court, the possibility to obtain a preliminary injunction without hearing the defendant significantly shortens the time to obtain a PI. When used, the possibility to appeal a PI decision lengthens the time to obtain a PI.”

Spain “In Spain inaudita parte request for preliminary injunctions are available. The Court is in the position to render a decision within a term of 5 days and afterwards the defendant has the chance to file a written opposition.”

UK “Judges tend to be available for time critical applications and this assists with obtaining injunctions at short notice”

UK “Any defence which might be filed”

UK “The preparation of the evidence in support of the injunction’

France “last minute brief in defence tend to lengthen the proceedings; the plaintiff will want to respond, consequently the trial hearing is postponed You can shorten the time taken to obtain a preliminary injunction through the so called "référé d'heure à heure"; as a result of the same, you can obtain a preliminary injunction within two days if the defendant is in France”

Poland “it takes up to three months until the first hearing”


PP Questions - 4 Q.6. How many MONTHS on average, again from the date lawyers were

initially instructed, would it take to obtain a FINAL injunction against a lookalike product, following a full trial (excluding any appeal proceedings).

UK replies again seem to suggest greater variation


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PP Questions - 5 Q.11. What would be the average total plaintiff's costs (including court,

lawyers and experts costs) of obtaining a PRELIMINARY injunction restraining the sale of a lookalike product? (The following table lists individual answers)

Costs of preliminary injunctions are higher amongst the UK replies


PP Questions - 6 Q.13. What would be the average total plaintiff's costs (including court,

lawyers and experts costs) of obtaining a FINAL injunction restraining the sale of a lookalike product? (The following table lists individual answers)

Costs of final injunctions are considerably higher amongst the UK replies


PP Questions - 7 Q.20. In your opinion would LOWERING the cost of obtaining PRELIMINARY injunctions in your jurisdiction be of benefit to your clients? (The following table lists individual answers)


Industry


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Industry Questions - 1 Q.5. Please identify any countries in the European Union where lookalikes are encountered more frequently than others in your opinion: (The following tables list individual answers)


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Industry Questions - 2 Q.7. In your experience which countries within the European Union provide the most effective legal remedies against lookalikes?


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Industry Questions - 3 Q.9. In your experience, which countries within the European Union provide no or no effective legal remedies against lookalikes?


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Industry Questions - 4 Q.13. Which are the countries where effective legal remedies are available against lookalikes, at reasonable cost?


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Industry Questions -5 Q.15. Which are the countries where effective legal remedies are available against lookalikes, but where the cost of undertaking legal proceedings is expensive?


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Conclusions

The replies collected suggest that the UK as a venue for Lookalike litigation is:

•  effective but sometimes, though not always, time consuming

•  an order of magnitude more expensive than in most of the rest of the EU

•  not as cost-effective in comparison with that in Germany in the eyes of users – (though replies from German based firms should be sought)

Response rates suggest that a larger survey would be able to provide more reliable evidence of the trends these pilot survey results suggest the existence of.

It must be stressed that the present pilot survey data does not constitute a statistically reliable basis for policy formation without conducting a full survey.


END

lookalike cases in europe · replies (to spec invitations) 7 response rate response rate58% private...

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