EUROPEAN UPDATE KIRKLAND & ELLIS INTERNATIONAL IN THIS ISSUE: UK Jurisdiction in Patent Infringement and Cyberspace

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1 KIRKLAND & ELLIS INTERNATIONAL INTELLECTUAL PROPERTY AND TECHNOLOGY EUROPEAN UPDATE IN THIS ISSUE: UK Jurisdiction in Patent Infringement and Cyberspace 1 Competition Law Defences in UK Patent Infringement Suits 2 Defamation and the Internet in the UK A Mixed Message on the Reform of the Rules 4 Olfactory Marks in Europe European Court of Justice Leaves Little Hope 6 Upcoming Changes to EU Competition Law 7 Editor: Pierre-André Dubois Authors: Pierre-André Dubois Joanna Shepherd WINTER 2003 In its first ever decision on the issue, the English Court of Appeal recently examined the issue of jurisdiction in the case of a patent relating to an interactive gaming system where the host computer is located outside the United Kingdom. In Menashe Business Mercantile Limited v William Hill Organization Limited 1, the Court of Appeal reversed an earlier decision from a decision of Mr. Justice Jacob. In this case, Menashe started proceedings against William Hill, the well known bookmakers, alleging infringement of its patent entitled Interactive Computerised Gaming System with Remote Control. Claim 1 of the patent claimed a gaming system for playing an interactive casino game comprising a host computer, at least one terminal computer forming a player station, communication means for connecting a terminal computer to the host computer and a program means for operating the terminal computer, the host computer and the communication means characterised in that the terminal computer is situated at a location remote from the host computer. The case proceeded upon agreed facts. William Hill operates a gaming system available to potentential customers in the United Kingdom with a computer. The customers are supplied with a program (usually by way of a CD) that turns the customer s computer into a terminal computer, which in turn communicates via the Internet with the host computer. Such host computer has the properties and carries out the UK Jurisdiction in Patent Infringement and Cyberspace functions of a host computer as defined in the patent but it is located outside the United Kingdom, namely in Antigua. Because of the location of the host server, William Hill stated that it could not be held liable for infringement. The entire case revolved around Section 60 of the Patents Act 1997 (which defines what will amount to infringement) and the interpretation of the phrase for putting the invention into effect in the United Kingdom, in Section 60(2). Section 60 of the Act stipulates: (1) Subject to the provisions of this section, a person infringes a patent for an invention if, but only if, while the patent is in force, he does any of the following things in the United Kingdom in relation to the invention without the consent of the proprietor of the patent, that is to say (a) where the invention is a product, he makes, disposes of, offers to dispose of, uses or imports the product or keeps it whether for disposal or otherwise; The Court found that while the invention required that there be a host computer, it did not matter where the host computer was located. (b) where the invention is a process, he uses the process or he offers it for use in the United Kingdom when he knows, or it is obvious to a reasonable person in the circumstances, that its use there without the consent of the proprietor would be an infringement of the patent; (c) where the invention is a process, he disposes of, offers to dispose of, uses or imports any product obtained directly by means of that process or keeps any such product whether for disposal or otherwise. (2) Subject to the following provisions of this section, a person (other than the proprietor of the patent) also infringes a patent for an invention if, while the patent is in force and without the consent of the proprietor, he supplies or offers to supply in the

2 EUROPEAN UPDATE United Kingdom a person other than a licensee or other person entitled to work the invention with any of the means, relating to an essential element of the invention, for putting the invention into effect when he knows, or it is obvious to a reasonable person in the circumstances, that those means are suitable for putting, and are intended to put, the invention into effect in the United Kingdom. The Court found that while the invention required that there be a host computer, it did not matter where the host computer was located. The location of the host computer is not important to the user of the invention, nor to the gaming system as claimed in the patent. It was relevant to ask, as the host computer was located in Antigua, and the terminal computer is in the United Kingdom, who is using the claimed gaming system. The Court was of the view that the user must be the customer who engages in the gaming activity. It is the input to and output of the host computer that is relevant to the customer and in that sense, it can be said that the customer uses the host computer in the United Kingdom even though it is situated and operated in Antigua. The Court concluded that in such circumstances, it would not be straining the word use to conclude that the United Kingdom customer is using the claimed gaming system in the United Kingdom even if the host computer is situated in another location. As such, the supply of a CD in the United Kingdom to a United Kingdom customer should be viewed as intended to put the invention into effect in the United Kingdom. A defence based on the fact that the host computer was located outside the United Kingdom therefore had to be rejected. This Court of Appeal decision will be welcomed by the owners of e-commerce related inventions and may signal that English law will take jurisdiction in cyberspace related cases provided that some form of nexus to the United Kingdom can be established. 2 Competition Law Defences in UK Patent Infringement Suits Can They Work? The English Court of Appeal recently handed down its judgment in relation to an appeal against an award of summary judgment which had considered as non-viable certain competition law defences raised by Via Technologies, Inc. ( Via ) in two actions in the English Patent Court brought by Intel Corporation ( Intel ). 1 The two actions brought by Intel alleged that Via was infringing a number of Intel s patents by various acts in relation to Via s CPUs (central processing units) and chipsets. Via counterclaimed denying the validity of the Intel patents at issue and the allegations of infringement. More interestingly, however, Via also raised certain competition law defences (the so called Euro-defences ) under Articles 81 and 82 of the Treaty establishing the European Community (the EU Treaty ) and the corresponding provisions of the United Kingdom s Competition Act Articles 81 and 82 of the EU Treaty provide as follows: 81(1) The following shall be prohibited as incompatible with the common market: all agreements between undertakings which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market, and in particular those which: (a) directly or indirectly fix purchase or selling prices or any other trading conditions; (b) (c) (d) (e) limit or control production, markets, technical development, or investment; share markets or sources of supply; apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; make the conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts. 81(2) Any agreements of decisions prohibited pursuant to this Article shall be automatically void. 82. Any abuse by one or more undertakings of a dominant market position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States. Such abuse may, in particular, consist in: 2

3 KIRKLAND & ELLIS (a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; (b) limiting production, markets or technical development to the prejudice of consumers; (c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (d) making the conclusion of the contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts." As a matter of European law, certain provisions of the EU Treaty have immediate effect in all Member States, and a breach of these provisions can be pleaded as a defence to an action for infringement of intellectual property rights or to challenge the validity of an IP-related contract. The history of the dispute is somewhat complicated. In 1998 Via and Intel entered into cross-licensing arrangements in relation to each other s patents (the CLA ). Subsequently, in 1999, Via acquired a competitor, Cyrix Technologies and expanded its production of CPUs. In June 1999, Intel purported to terminate the CLA on the basis that Via had breached the CLA. The parties subsequently entered into a revised CLA (the Revised CLA ). At the end of 2000/start of 2001, Intel entered into a number of licences with third party manufacturers for the manufacture and sale of chipsets compatible with Intel s new Pentium 4 CPUs. In early January 2001, Intel produced a further revised CLA (the draft CLA ) to VIA setting out the basis on which it was prepared to grant licences to Via for the manufacture and sale of chipsets compatible with its Pentium 4 CPUs. The draft CLA contained two provisions to which VIA objects; (i) the so-called Market Division Term, which would restrict Via s use of the Intel licensed technology to chipsets compatible with Pentium 4s only, and would not allow Via to use the licensed technology to manufacture chipsets compatible with any improved version of the Pentium 4 regardless of how minor the improvements are; and (ii) the so-called Asymmetric Licence which obliges Via to grant an unrestricted licence for the use of all its patents and technology relating to chipsets and CPUs to Intel but in return Via would only receive a licence to use Intel s patents for chipsets and then only in relation to chipsets compatible with Pentium 4 CPUs. Via argued that the proceedings brought by Intel were unlawful on the basis that the terms of the draft CLA would infringe Article 81 (1) and that Intel s refusal to grant Via a patent licence on lawful or reasonable terms was an abuse of a dominant position contrary to Article 82. In particular, Via argued Intel has a dominant position in the worldwide market for both the CPUs and chipsets concerned and that the patents in suit constitute industry standards for the chipset market so that it is impossible for other undertakings to enter or compete at all with [Intel] on that market unless they can make use of the technology in question. Via further argued that Intel s refusal to grant a licence on lawful or reasonable terms and Intel s bringing of proceedings constituted an abuse of Intel s dominant position by: (a) preventing the emergence of new types of CPUs and compatible chipsets; (b) partitioning the market in compatible chipsets by relegating licensees to trailing edge technology; and (c) thereby prejudicing customers and users by preventing Via and others from the development of new improved products and/or lower prices from those supplied by Intel. Although Via did acknowledge that the owner of an intellectual property right, including one in a dominant position, is entitled to refuse to licence others, it nevertheless contended that the factual situation constituted exceptional circumstances in that Intel s refusal to grant a licence to use The ingredients of computer technology, patent infringement and Articles 81 and 82 EC Treaty make a somewhat indigestible dish. the patents on lawful or reasonable terms both eliminates competition in respect of a substantial part of the product market and prevents the emergence of a valuable new product. In the context of this appeal of a decision that had dismissed on a summary application the Euro-defences of Via, the Court of Appeal agreed. The task of the Court of Appeal was to review the award of summary judgment to Intel on the competition issues in the court of first instance. Under English law, the test that Intel had to satisfy to retain the award of summary judgment was to demonstrate that Via had no real prospect of succeeding on the competition defences and that there was no other compelling reason why the competition defences should be disposed of at trial. The Court of Appeal found that Intel did not overcome this burden, holding that: (i) a licence term is incompatible with Article 81 if it seeks to regulate the commercial market by controlling not only what is made 3

4 EUROPEAN UPDATE with the licensed technology, but also use of the technology thereafter; (ii) the Market Division Term is incompatible with Article 81; (iii) an anti-competitive term collateral to licensing terms that would otherwise constitute an infringement of competition law must be justified by the proposer on its own merits and not because of its inclusion in a licence of an intellectual property right if it is to be upheld; and (iv) that in consequence of (i), (ii) and (iii), and the exceptional circumstances pleaded (and summarized above), Via had a real prospect of success in demonstrating that both the Asymmetric Licence and the Market Division Term would be incompatible with competition law. The European Court of Justice has in the past considered various cases where Euro-defences were pleaded. In those cases 2, the European Court of Justice clearly recognized that the mere exercise of one party s intellectual property right and refusal of the license will not, in itself, amount to a breach of competition law. Rather, one must establish exceptional circumstances showing that there is an abusive conduct. 3 The ultimate test for a court is to be able to draw the dividing line between (a) allowing the owner of the registered intellectual property right to protect its monopoly and not deprive it of the substance of its exclusive right, and (b) preventing an abusive conduct which goes beyond the protection of these rights. This decision (although limited to the application for summary judgment) is significant as it provides some guidance on what acts might be considered, in the context of patent rights, to amount to abusive actions in breach of competition law. Moreover, it is one of the only UK cases which has considered a Euro-defence in the context of a patent infringement action as a potential viable defence. 4 Previous UK decisions dealt with the validity of agreements proper, or in one case, copyright and spare parts 5, but no Euro-defence has succeeded before an English court in cases involving an intellectual property right. The Court of Appeal ended its decision by a rather blunt statement that clearly highlights the complexity of the tension between patent rights and European competition law: The ingredients of computer technology, patent infringement and Articles 81 and 82 EC Treaty make a somewhat indigestible dish. We can only now wait to see if at trial, the set of Euro-defences pleaded in this case will succeed. Defamation and the Internet in the UK A Mixed Message on the Reform of the Rules Regarding Liability Issues For ISPs and On-Line Publishers The United Kingdom s Law Commission recently published its preliminary investigation into defamation and the Internet. 1 While on the one hand the Law Commission concluded that there is a strong case for reviewing the impact of English defamation law on the liability of ISPs for other people s materials and on on-line publishers, the Law Commission has not recommended any steps to resolve the jurisdictional compliance issues suffered by ISPs and online publishers. Current English defamation law Section 1 (1) of the Defamation Act 1996 (the Act ) currently provides a limited defence to ISPs who act as secondary publishers (i.e. ISPs who are involved in disseminating a defamatory statement where the ISP is not the author, editor or commercial publisher of the defamatory statement), where the ISP can demonstrate that: (b) it took reasonable care in relation to the publication of the defamatory statement; and (c) it did not know, and had no reason to believe, that what it did caused or contributed to the publication of the defamatory statement. However, this defence is very narrow and only applies to those ISPs who are unaware that the publication contained a statement with defamatory meaning. The defence does not apply to an ISP who genuinely but mistakenly believes that the material is true or fair comment and/or to an ISP who exerts some form of editorial control over the material or content provided to it, including where the ISP merely exercises some discretion over how long the material is saved or has the power to remove material (as is often the case with newsgroups or websites). 2 Furthermore, since the coming into force of the Electronic Commerce (EC Directive) Regulations 2002 on 21 August 2002 (the Regulations ) 3, the defence under Section 1 of the Act must be read in the light of the Regulations and the European Union s E-Commerce Directive 2000/31/EC (the Directive ). The Regulations and the Directive were designed to limit the liability of ISPs on a range of legal issues including defamation. The Regulations provide that an ISP, which is a mere conduit, has immunity from damages and/or criminal sanctions as a result of transmissions. 4 However, the limitation of this immunity to ISPs who act as mere conduits effectively excludes web sites and web-based , all of which are stored by the relevant 4

5 KIRKLAND & ELLIS ISP. Regulation 19 of the Regulations grants a similar immunity to ISPs who host sites on the condition that the ISP does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent. 5 However, once an ISP obtains such information, it loses immunity unless it acts expeditiously to remove or disable access to the information. 6 The term hosting is broadly defined to cover both those who store web pages and, arguably, web-based services where messages are stored and can be accessed by the subscriber anywhere in the world....the Law Commission has clearly identified issues where there is a pressing need to harmonize the interaction of English law and Internet law... Despite requests for clarity made before the Regulations were enacted, the Regulations provide little guidance on the meaning of actual knowledge or awareness. Regulation 19 merely states that immunity is lost if the service provider has: actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful. This creates a problem as under current English defamation law, it is prima facie unlawful to publish a defamatory statement. On this basis, it appears that an ISP has actual knowledge of unlawful activity as soon as its becomes aware that the publication has taken place. This means that Regulation 19, like Section 1 of the Act, fails to provide a defence to any ISP who has been notified that a statement bears a defamatory meaning. Furthermore, the defence under the Directive likely does not apply to providers of hyperlinks and location tools which point to defamatory content or those who aggregate information by selecting articles and extracts as these are likely to be regarded as primary publishers and would therefore be directly liable for the content they distribute. The consequence of the failure of the Act and the Regulations to provide an adequate defence for ISPs is that under current English law, in which an ISP receives a complaint that material published on newsgroups and websites is defamatory, the safest response is for the ISP to remove the material, whether or not the alleged defamatory material is in the public interest or true. Additional pressure has been placed on ISPs by the enactment into English law of the provisions of the European Convention of Human Rights ( ECHR ). Under Article 10 of the ECHR (freedom of expression), Internet users have the right to receive and impart information and ideas. Although Article 10 (2) allows domestic states to impose restrictions for the protection for the reputation or rights of others, such exceptions must be narrowly interpreted 7 and must be necessary. Necessary has been taken to mean that there must be both a pressing social need for the requirement, and the requirement must be proportionate, relevant and sufficient to meet the need. 8 Although the majority of the case law on Article 10 has focused around the freedom of expression of the press, some websites may provide important information in which the public has a legitimate interest. Thus, ISPs run the risk of both the defamation laws and restricting individuals freedom of expression by removing material from the web or refusing to host material. In consequence, ISPs are often forced to act as judge and jury in making difficult decisions on whether or not to remove material. In its investigation, the Law Commission concluded that there is a strong case for reviewing the way that English defamation law impacts on ISPs liability for material over which they have no editorial control but which they store on behalf of others. On-line publishers of online archives In contrast to the position under US law where a single edition of a newspaper or book is considered to be a single publication 9, the standard rule for defamation under English law is that a cause of action accrues each time a libel is disseminated. This means that for on-line materials, the limitation period begins each time the on-line archive is hit. 10 This means that where an archive is placed on-line (e.g., a newspaper archive), a libel action may be brought many years after original publication when it is difficult for the online publisher to mount an effective defence as records and witnesses are no longer available. The Law Commission concluded that there is need for a review of the way in which the multiple-publication rule interacts with the limitation period in relation to archived material and that it is potentially unfair to defendants to allow actions to be brought against the publisher of on-line archives decades after the original publication of the archived documents. However, the Law Commission also concluded that the limitation period for defamation should be extended to reduce hardship to claimants who have little time to prepare their case under the current one year limitation period. 5

6 EUROPEAN UPDATE Jurisdictional issues The advent of the Internet has meant everyone has the ability to communicate internationally and that material placed on the World Wide Web may be accessed in any country in the world. This means that the owners of websites and ISPs are faced with the need to ensure that their content complies with the law of each country in which that content may be accessed. The jurisdictional issues in relation to defamation have three threads. Firstly, location. Where was the defamatory material published? Under English law, each defamatory communication to a third party constitutes a separate tort which takes place in the country in which the statement is downloaded, irrespective of the location of the servers. Secondly, jurisdiction to hear claims. Which national courts have jurisdiction to hear the claim? Thirdly, governing law. Which country s law should the court apply? In relation to this third issue, the English courts usually apply a double actionability rule. Under this rule, an English court will award damages, in respect of foreign publications, if the facts are such that the matter must be actionable in both England and the country where the publication takes place. One of the aims of the Directive was to reduce legal uncertainty as to choice of law. To this end the Directive introduced the principle that subject to certain exceptions, the law governing providers (e.g. ISPs) should be the law applicable to the country in which the provider is established. However, due to the precise wording of the Directive and the United Kingdom s Regulations, there is some uncertainty as to how the Directive and/or the Regulations prevent an ISP based in a Member State of the European Union other than the UK from being held liable under English law for a defamation that takes place in England. The Law Commission expressed sympathy for the jurisdictional liability issues suffered by ISPs and on-line publishers, but at this time the Commission has decided not to recommend any changes to English law on this issue. Defamation is a fast growing area of English law and is proving to be an area for more and more high-profile cases particularly since the enactment of the ECHR. It should be expected that the number of instances where ISPs will be sued will also increase. While the Law Commission has clearly identified issues where there is a pressing need to harmonize the interaction of English law and Internet law the Law Commission did not recommend a time frame for resolution of these issues. In consequence, the English courts will, for the time being, be left to write the laws on these issues. Olfactory Marks in Europe European Court of Justice Leaves Little Hope On 12 December 2002, the European Court of Justice ( ECJ ) dealt a blow to trade mark owners who wish to register in Europe olfactory marks. The ECJ had to consider the issue under the First Council Directive (89/104/EEC) of 21 December 1998 to approximate the laws of Member States relating to trade marks (the Directive ). The case in issue (Ralf Sieckmann v. Deutsches Patent- und Markenamt) 1 was referred to the ECJ by the German Federal Patent Court and related to a German trade mark application for: the olfactory mark of the pure chemical substance methyl cinnamate (= cinnamic acid methyl ester), whose structural formula is set out below. Samples of this olfactory mark can also be obtained via local laboratories listed in the Gelbe Seiten [commercial telephone directory] of Deutsche Telecom AG C 6 H 5 -CH = CHCOOCH 3 in respect of various services in International Classes 35, 41 and 42. One of the requirements of the Directive is that a mark must be capable of being represented graphically. 2 The German Federal Patent Court referred two questions to the ECJ relating to the meaning of graphical representation : firstly, whether the Directive should be interpreted as only being applicable to marks that can be reproduced directly in their visible form, or whether the Directive extends to include marks, such as odours or sounds, which cannot be perceived visually, per se, but can be reproduced indirectly using certain aids, and, secondly, if an odour constitutes a registerable mark for the purposes of the Directive, clarification as to the satisfaction of the requirement of graphic representability. The ECJ held that the Directive must be interpreted as meaning that a trade mark may consist of a sign that is not in itself capable of being perceived visually, provided that it can be represented graphically, and that such graphic representation is clear, precise, self-contained, easily accessible, intelligible, unequivocal, durable and objective, so that the graphical representation precisely determines the subject of the protection afforded by the registered mark to its proprietor. However, in relation to the second question, 6

7 KIRKLAND & ELLIS the ECJ found that in respect of an olfactory mark, a chemical formula, a description in words or the deposit of an odour sample are not capable of satisfying, in themselves, the requirements of graphic representability, nor is a combination of those elements able to satisfy such requirements, in particular those relating to clarity and precision. The ECJ did not elucidate how this may be achieved. Given that a chemical formula, a description in words and/or the deposit of an odour are not a sufficient graphic representation according to the ECJ, it is difficult to conceive how applicants may satisfy the graphical representation requirement under the Directive and achieve registration of an olfactory mark. It can therefore be fairly stated that olfactory marks now have little future in Europe. Moreover, based on the conclusions of the ECJ on the graphic representability requirements, one can also conclude that those olfactory marks, which have been registered in certain Members States, would likely be held invalid if ever challenged. The ECJ has yet to examine the issue of sound marks. Upcoming Changes to EU Competition Law A Simplified Process for IP Owners EU competition law is a complex subject matter and is often a nightmare of procedures. In an effort to simplify competition practice, the EU Council of Ministers adopted on 16 December 2002 Council Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down by Articles 81 and 82 of the Treaty (the Competition Regulation ). The Competition Regulation will not amend substantive competition law as it currently exists. However, the Competition Regulation will modify the procedures of the European Commission. The trade-off for this simplified process is that intellectual property owners will no longer be able to obtain immunity from prosecution and fines by making a notification... The simplification of the system will be welcome by intellectual property owners as the Competition Regulation provides for the introduction of a system of legal exception, based on the principle that agreements not contravening the competition rules are automatically lawful, replacing the current system under Article 81 of the Treaty which is based on the principle of prohibition and the use of individual notifications to the Commission. Under the Competition Regulation, it will no longer be necessary to file a notification. The trade-off for this simplified process is that intellectual property owners will no longer be able to obtain immunity from prosecution and fines by making a notification as under the current system. The Competition Regulation will come into force on 1 May As of that date, businesses will have to rely on their own evaluation as to whether or not an agreement is in compliance with European competition law. As a result of the new system, it will be even more important for businesses to seek proper guidance on the drafting of both the commercial and legal terms of their agreements. The current block exemptions will remain in force. Notifications granted before 1 May 2004 will remain in force for their full duration. However, notifications still pending on 1 May 2004 will lapse. We will, in a future edition of the Newsletter, examine in more detail some of the other issues surrounding the changes brought by the Competition Regulation. 7

8 EUROPEAN UPDATE Notes For more information visit or contact: London Pierre-André Dubois Tel: +44 (0) Chicago William A. Streff, Jr., P.C. Tel: Gregg Kirchhoefer Tel: Los Angeles Robert G. Krupka, P.C. Tel: New York Lisa A. Samenfeld Tel: San Francisco Stephen Johnson Tel: Washington, D.C. Edward C. Donovan Tel: Kirkland & Ellis International is a multinational practice of solicitors, Registered European Lawyers and US attorneys regulated by the Law Society. JURISDICTION IN PATENT INFRINGEMENT (from pages 1-2) 1 [2002] EWCA Civ Prior to this decision, in the context of the law of passing off, an English court had found that passing off occurred in England where the reputation of the plaintiff in its brand name INTER- NET WORLD was damaged by the defendant s actions following promotion over the Internet, even if the events took place in Germany (Mecklermedia Corporation v DC Congress GmbH [1997] FSR 627). COMPETITION LAW DEFENSES (from pages 2-4) 1 Intel Corporation v Via Technologies Inc. et al [2002] EWCA Civ Magill (RTE and others v European Commission) [1995] ECRI 743; Volvo v Veng [1998] ECR Magill, supra, note 2. 4 Euro-defences considered on preliminary motions were dismissed as unlikely to succeed in Minnesota Mining v Geerpres [1974] RPC 35; Quantel v Electronic Graphics [1990] RPC 272; and Phillips Electronic NV v Ingram [1998] 2 CMLR British Leyland Motor Corporation Ltd v TI Silencers [1981] 2 CMLR 75. DEFAMATION AND THE INTERNET (from pages 4-6) 1 Law Commission, Defamation and the Internet A Preliminary Investigation, Scoping Study No. 2 December Godfrey v Demon Internet Ltd [1999] 4 All ER See Kirkland & Ellis Intellectual Property and Technology European Update, Autumn Regulation Regulation 18 (a). 6 Regulation 18 (b). 7 Observer & Guardian v United Kingdom 14 EHRR Sunday Times v United Kingdom (No. 2) 14 EHRR 229, Firth v State of New York (2002) NY int Loutchansky v The Times Newspapers [2002] 1 All ER 652. OLFACTORY MARKS IN EUROPE (from pages 6-7) 1 Case No. C-273/00. 2 See Article 2 of the Directive.