The LYCRA® Louts

Photo Credit: www.chrismaher.co.uk

In the wake of Team GB's dominant display in the Olympic and Paralympic cycling, it was only a matter of time until the Lycra Louts emerged once more. Post-Olympics, it will be impossible to avoid them.

Hot on the heels of the Paralympics closing ceremony, our first high profile Lycra Lout is spotted: Dominic Casciani, writing for the BBC News website.

His offense is clear from the headline of the article: "Rise of the Mamils (middle-aged men in lycra)". Though perhaps innocuous to the untrained eye, a quick glance at any good dictionary will identify the problem:

LYCRA® Lout ∙ /ˈlaɪkrə laʊt/ n 1. A person, unaware of the fact that LYCRA® is a jealously guarded trade mark, who uses the word LYCRA® generically

Identifying Lycra Louts is more than mere pedantry. For Invista, the company which owns the rights to the LYCRA® trade mark, it is big business. They have clear advice on their website explaining that LYCRA® fiber is very different from generic stretch fabrics and that, accordingly, the terms must not be used interchangeably. To quote from the advice, "Please don't say: "Men in LYCRA®.""

As strange as the situation may seem, there is an important legal basis to it. When Invista say that misuse of the trade mark is "a disservice to the person who values the performance of LYCRA® fiber over generic stretch materials", this does not tell the whole story.

The fear for Invista is that the LYCRA® trade mark will, through misuse, become a generic term. If lycra has become "the common name in the trade" for generic stretch fabrics, the trade mark will be liable for revocation on the grounds that it no longer satisfies the requirement of distinctiveness, under s. 46(1)(c) of the Trade Marks Act 1994. This has been the fate of many former trade marks, such as 'hoover', 'thermos' or 'walkman'.

The question to ask is whether this point has already been reached. The wording of the act provides assistance in judging the issue. It is necessary, according to s. 46(1)(c), for the mark to have become generic "in consequence of acts or inactivity of the proprietor". This is, presumably, what Invista seek to avoid through the advice on their website.

In previous cases, dictionary definitions have provided assistance in judging whether a mark has become generic. For this reason, Article 10 of Community Trade Mark Regulation 209/2007 provides for the correction of dictionary entries to indicate that a mark is registered and not a generic term. Performing this exercise with lycra makes worrying reading for Invista. A search on Google.co.uk for "lycra definition" provides a dictionary definition devoid of any mention of a registered trade mark.

Outside of dictionaries, the mainstream news seems to treat lycra in a similar, generic fashion. A recent story in The Daily Mail, despite using 'Lycra' with a capital 'L', is almost certainly using the term generically. Petronella Wyatt, a definite Lycra Lout, writes: "On August 16, my mother was hit by a Lycra lout". Leaving aside the fact that Ms Wyatt's dictionary seems to have led her astray, it is clear that she is referring to lycra in sense of the generic stretch fabric worn by cyclists, rather than to identify the brand of fiber incorporated into the offending cyclist's garments.

Similarly, a Google News search for 'lycra' provides a slew of results presumably making generic use of the term. This article about Victoria Pendleton's upcoming 'Strictly Come Dancing' appearance, for example, employs the term lycra to refer to in a generic fashion to cycling apparel, with no specificity about brand or fiber content.

The loss of a mark's distinctiveness is a problem faced by numerous companies - often those owning the rights to high profile trade marks. By their nature, these may be the terms with which familiarity is the highest and, as a corollary of this, which are in danger of becoming the common name in the trade for a product.

To conclude the case study of lycra, it seems that the burgeoning popularity of British cycling, with its 'lycra clad' protagonists, has pushed the mark into generic territory. Invista may claim that their campaign to protect the trade mark precludes the mark becoming generic in light of the wording of s.46(1)(c). Their struggle is King Canute-esque, however, against the reality of a world where our cycling heroes speed through the national consciousness wearing their generic lycra.

Sliding to unlock since '04, baby

Floyd J today struck a significant blow in the ongoing smartphone patent wars. Delivering judgment in the chancery division of the High Court today, it was held that a number of patents held by Apple in relation to the iPhone were invalid. 

Of the four patents that were in issue, one in particular is interesting. Apple's 'slide to unlock' mechanism, as used on the iPhone, has been patented since 2008. It is a signature of the device and is the touchscreen's answer to the menu > * input of Nokia fame.

Similar features exist on a range of other smartphones, notably HTC's Desire, Wildfire etc. These phones, and a plethora of others, feature HTC's 'arc unlock' feature. Like Apple's 'slide to unlock', the arc unlock involves sliding a finger along a predefined path on-screen.

Apple alleged that this constitutes an infringement of its patent. By contrast, HTC claimed that the Apple patent was invalid. In what could prove to be a hugely important decision, it was found that the patent was in fact invalid. 

The reasoning behind the court's decision was that the patent fell at the hurdle of the inventive step. It is a requirement of this step that an invention be 'non-obvious' and, in light of previous inventions, the court held that this requirement was not fulfilled. The court pointed to the Neonode N1 as a pre-existing invention which, since 2004, featured a similar slide to unlock mechanism. The addition of visual feedback to this process was held to be "obvious" and, accordingly, the patent was invalid.

This decision is certainly significant. While the smartphone patent wars will undoubtedly rage on, HTC will consider this a key battle to have won.

A State of Flux

It is a cliché to decry the inability of copyright to cope with the demands of a digital age. There are a range of criticisms that can be levelled at the regime which span the spectrum from erudite to sensationalist. Too often this criticism is lazy and self-serving, demonstrating a failure to understand the law and technology. 

It is clear that we have entered a new age and that there have been fundamental shifts in the way content is created, distributed and consumed. This poses difficult questions for creators, distributors and, a point that can be overlooked, for consumers. This article will address a specific point relating to the pricing of music which has resulted from the distribution of content in the digital age. This is a point which is too often neglected in favour of broad-brush criticism of the copyright regime. It is, however, a point worth pursuing.


The model for the distribution and consumption of music is in a state of flux. This creates uncertainty and is ultimately detrimental to stakeholders in the music business. There is a proliferation of services offering music for free in a variety of formats alongside a number of services which charge an often significant price. The result of this is that there is no agreement on how much music should cost or on a consistent pricing model.

Music is freely, legally available on ad-supported services such as Spotify. Alternatively, almost any song in the world is available on Youtube, again often supported by adverts. Other websites offer a different approach to free music: MySpace, Purevolume, Soundcloud,  Grooveshark, Last.fm to name but a few. 


A different model emerges for those seeking to own rather than stream content. The prime example of this is the iTunes store where a single costs £0.99 to UK consumers. Alternatively, Spotify offers quasi-ownership of content in the form of unlimited, advert-free music which can be played offline for a subscription of £10/month.

The difficulty arises from the fact that what is being paid for is, effectively, the right to download music. With this comes the ability to listen to it offline and play it on a personal music device. The argument can be made that the interface and usability of a paid product such as iTunes is superior to free music platforms but, with improvements in online music players, this is a point of diminishing importance. The central question is therefore whether  downloading rather than streaming justifies this price.


Until mainstream providers offer a pricing model better suited to the wants of consumers and adapted to address the competition, consumers will continue to baulk at paying such a premium for the convenience of having music downloaded onto a computer. The advent of cloud computing suggests that a subscription service is the way forward but that is a question for a different article. The crucial point is that consumers, unhappy with the price demanded, have a range of options. Some will unhappily pay the price that the iTunes store demands. Some will make use of an alternative service such as Spotify. However, a significant minority will download music illegally. 

This article does not seek to defend those users which download music illegally, it simply aims to identify one contributing factor to the problem. The confused pricing structure and purchasing model offered by mainstream content providers is driving a certain number of people to illegal behaviour. This state of flux must be addressed.

Premiership Football Returns to Portsmouth

Sulaiman Al Fahim got rid of it on the 10th of April 2010, Karen Murphy brought it back on the 4th of October 2011. Unbelievable scenes.

More to follow.

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Welcome to Intellect Yule Proper Tea, an IP blog as good as its name is stupid.

The blog will cover current events in the world of Intellectual Property law with a primary focus on the United Kingdom along with the occasional glance at IP issues internationally.

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