ETIRA Members News Update November 2003

Wanted: Comparison surveys, test reports, publications comparing OEM to remanufactured

Following last month’s successful ETIRA action related to the HP ad’s in Germany, we collected consumer surveys, test reports, etc. demonstrating that remanufactured is equal to or better than OEM cart’s. There are many recent test reports and surveys in Germany, and we are looking for identical studies, reports, magazine publications from other European countries.

If you have any of these publications, please send them to ETIRA now or tell us where we can find them. ETIRA is putting together a database of these reports for use by its members. You can find the articles in the password-protected section of our website, under the header Issues.

EU Court confirms it: when acting honestly, remanufacturers may use an OEM brand name to indicate the purpose of the product

On 17 March 2005, the EU Court of Justice in Luxemburg ruled a legal case (no C-228/03) pitting Gillette razor company against an independent company producing blades to fit Gillette razor handles. As we expected, the Court’s verdict favors innovation: it clearly said that using the name of Gillette is allowed when it is necessary to indicate the intended purpose of the blade, provided such use is made according to honest practices in industrial and commercial matters.

“Necessary” means that there is no other way of providing the public with the information as to the intended purpose of the product.

“Honest” use means fair. Not fair use is for instance:

·  when there is the impression that there is a commercial link between remanufactured and the OEM

·  when use of the trade mark affects its value

·  use of the trade mark discredits or denigrates it

·  when the remanufacturer presents the product as OEM-imitation or replica

The Court’s own press release can be found in the password-protected section of our website, under the header Legal. For more details please contact the Secretariat.


Italy: remanufacturers to create national organization

On 17/18 June 2005, a group of Italian cartridge remanufacturers and their business partners will meet to evaluate the need for a national trade association of remanufacturers. In order to face the many challenges in the Italian and European marketplace, the call to work together is ever stronger, and united the industry can sustain growth. Following a request from the initiators of this meeting, ETIRA manager Vincent van Dijk will attend part of the session to brief our Italian colleagues about ETIRA and latest EU developments. We look forward to rendering active support to the unification plans.

Quality standards: CEN meeting in Berlin 21-22 June

Another vital meeting of the CEN group working on quality standards will take place on 21-22 June 2005 in Berlin at the DIN-offices. During the last months, special subgroups have worked hard on drafts for inkjet respectively toner. The result is a compromise text that does not go into too much detail, whilst still including minimum criteria needed to ensure a top-quality product. The latest versions will hopefully receive the green light from both OEM and remanufacturers delegations in CEN (more remanufacturers’ participation would be better though!). Need more details? Contact the Secretariat.

Another Static victory in fight with Lexmark

The United States Supreme Court has rejected Lexmark's petition for certiorari, upholding Static Control's position against the Digital Millennium Copyright Act (DMCA) and copyright issues raised by Lexmark in connection with Static Control's sale of Lexmark compatible chips. The latest ruling marks the fifth straight victory for Static Control Components Inc. and the end of Lexmark's attempts to use the DMCA to create a monopoly in aftermarket supplies. Static now offers the only Lexmark compatible chips that have been cleared by the courts under the DMCA or copyright.

In October, the 6th U.S. Circuit Court of Appeals in Cincinnati, Ohio, overturned a preliminary injunction banning the sale of Smartek replacement chips by Static Control Components for the Lexmark cartridges based upon Lexmark's claims under the DMCA and copyright. The 6th Circuit opinion turned, in part, on the design of the Static Control chips.

Lexmark appealed to the full body of the 6th Circuit to rehear the case, and that request was denied in February 2005.

"I could not be any happier that justice is being served," said Ed Swartz, CEO of Static Control. "For nearly 900 days we have fought tooth and nail with this multibillion dollar company. We vowed at the outset that we would not back down or waiver, and we will see this battle to its very end."

On Dec. 30, 2002, Lexmark filed a lawsuit against SCC. In the suit Lexmark claimed that SCC's Smartek 520/620 chips violated the Digital Millennium Copyright Act of 1998.

"We have secured two victories in Ohio in the 6th Circuit, two victories in Washington, D.C. with the Copyright Office and Supreme Court and a victory in North Carolina's legislature. We are looking forward to going back to Kentucky with five victories under our belt."

According to SCC General Counsel William London, the impact of the Supreme Court's decision is significant. "This decision should greatly simplify what is left of the Lexmark lawsuit. At the trial Lexmark will be forced to defend their anti-competitive activities without the distraction of Lexmark's baseless DMCA claims."

Annual membership fee: Please pay the ETIRA membership fee

Several members still have not paid their 2005 ETIRA membership fee, which was due in April. Please remember ETIRA is a non-profit organisation depending on membership fees for its daily work. Please make the payment today, so we can work on your behalf and let you benefit from our services and allow you to have access to our networking meetings.

Important dates 2005:

-14 June: ETIRA -Member’s Only- company visit to Cabot Corporation, Botlek, The Netherlands

-28-30 June: Recicla Mais Sao Paulo

-22-24 July: Remax Asia Pacific/ACRA trade show, Perth, Australia

-24-26 August: World Expo, Las Vegas

-late September/early October: ETIRA -Member’s Only- meeting Italy (date tbd)

-29 September-1 October: Expo Reciclador, Buenos Aires