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Martin Howe QC

 


Year of call: 1978
Year of silk: 1996

Martin Howe’s practice encompasses intellectual property and extends into wider fields of EU law and commercial and public law. He acted for the Secretary of State in the High Court and Court of Appeal in the tobacco standardised packaging case (R (BAT) v Sec of State for Health [2016] EWCA Civ 335), a judicial review case involving issues of intellectual property law, fundamental rights, free movement of goods under EU law, and the interpretation of TRIPS.

He is very experienced in higher courts. He appeared in the Hong Kong Court of Final Appeal in Tsit Wing v TWG Tea, the first trade mark case to reach that court, and in the UK Supreme Court in RFU v Viagogo, which dealt with the balance between the protection of personal data under the EU Charter of Fundamental Rights and the courts' powers to order disclosure of the identities of individuals alleged to have used a website to advertise tickets in breach of the terms and conditions of the ticket issuer.

He has conducted numerous cases in the CJEU, both IP related and relating to wider aspects of EU free movement and regulatory law. These include the first ever case about the so called 'Specific Mechanism' on parallel imports of pharmaceuticals from the EU Accession States (Merck v Sigma), the industry changing group of cases on trans border satellite broadcasting (FAPL v QC Leisure/Karen Murphy), the leading case on whether copyright prevents replication of computer program functionality and computer languages (SAS v WPL), on internet streaming of TV broadcasts (ITV v TVCatchup) on which the CJEU gave judgment on the second reference in March 2017, and the first ever case in the ECJ on circumvention of copy protection (Nintendo v PC Box). He conducts cases in the ECJ on references from the courts of other Member States (as in Nintendo v PC Box, from the Milan court) as well as from the UK.
He appears frequently in the Court of Appeal, as in Glaxo Wellcome UK Ltd v. Sandoz Ltd [2017] EWCA Civ 335 where he upheld a summary judgment by the defendants invalidating Glaxo’s EU Trade Mark based on a representation of its two-tone purple Seretide inhaler, on the ground that the nature of the registered mark was insufficiently clear from its representation to satisfy Article 4 of the EUTM; and in Robyn Rihanna Fenty v Arcadia Group (t/a Topshop) [2015] EWCA Civ 3, where he acted on behalf of the singer Rihanna in establishing a claim of passing off against Topshop for selling T shirts bearing an image of Rihanna.

He has a particular expertise in heavy technological cases, such as the internet, computers and IT, broadcasting and telecommunications technology, and biotech and pharmaceuticals: for details of his cases in these fields, see sections on Patents and on Copyright. 

His wide-ranging EU law practice focusses on free movement of goods and services and EU regulatory law. This has taken him to courts and tribunals outside the usual experience of IP practitioners, such as the Court of Appeal (Criminal Division), the Crown Court and the Admin Court on appeal - see section on EU Law.

He is the lead author of Russell Clarke and Howe on Industrial Designs (now in 9th Ed), and edited Halbury's Laws Title on Trade Marks. He is an Appointed Person to hear designs appeals from the UK IPO under the new appeal system of the Intellectual Property Act 2014.
 

Broadcasting, Telecommunications and Internet

Martin Howe has unparalleled expertise in the field of broadcasting, telecommunications and the internet, particularly in cases involving cross border and international issues and the interfaces between intellectual property law and EU law on free movement and competition.

He acted in a linked series of cases about his clients' use of imported satellite decoder cards in pubs in the UK to give access to satellite broadcasts of Premier League matches carried on foreign satellite channels, which involved a conflict between the freedom to receive services across frontiers in the EU single market and the attempted use of copyright law and national criminal laws to prevent the showing of match content outside national territorial zones allocated to licensees of FAPL. This led to one of the most important judgments to affect broadcasting in Europe in the last quarter century, FAPL v QC Leisure (for details see Copyright section), resulting in the quashing of the criminal conviction of his client, Portsmouth landlady Karen Murphy (Murphy v MPS - see Copyright section) and the dismissal of most of the civil claims against the importers of decoder cards and end user publicans.

He also acted in the ITV v TV Catchup litigation (for details see Copyright section) about the retransmission of free-to-air TV programmes via the internet, a case which went to the Court of Appeal and twice to the CJEU.

He also deals extensively with other aspects of the law relating to telecommunications and the internet. He has dealt with the technical intricacies of mobile phone transmissions between phones and masts and how mobiles are handed from cell to cell in a major patent case relating to interception equipment (MMI v Cellxion - see Patents section), as well as with wifi and private network communication in Secretary of State for Education and Skills v Frontline Technology Ltd - see Patents section.

He handles cases under the Electronic Communications Code (formerly the Telecommunications Code) concerning mast sites, which can involve highly technical issues about signal strengths and coverage.

His coverage of the internet includes advising on the defences under the E Commerce Directive (2000/31/EC), where ISPs and other entities host online materials uploaded by others, and jurisdictional issues, including exposure to US law under the Digital Millennium Copyright Act (DMCA). He acted in one of the leading cases on trade mark infringement and the internet (Reed Executive v Reed Business Information - see Trade Marks section) and in the only case which has so far reached the Supreme Court on the liability of website operators to disclose information about their customers under a Norwich Pharmacal order: RFU v Viagogo - see EU Law section.
 

  • What the Directories Say
  • "He always does a good job and is very effective in court. He is highly persuasive and always clear and rational" "he is really user-friendly and judges respect him. He is a bright, enthusiastic and committed barrister"
    Chambers & Partners (Intellectual Property) 2017

    "As well as being a leader in the field generally, he has a detailed technical grasp of computing and digital technology"
    Chambers & Partners (Information Technology) 2017

    "He has in-depth knowledge of copyright in broadcasts, EU copyright law and great commercial understanding of the client's objectives. He provides clear strategic advice"
    Chambers & Partners (Media and Entertainment) 2017

    "A specialist in the IP field with particular expertise in EU law."
    Legal 500 (Intellectual Property) 2017

    "A very good advocate"
    Legal 500 (IT and Telecoms) 2017

    "Recommended for IP work with EU elements"
    Legal 500 (Intellectual Property) 2016

    "Experienced in technical IT disputes"
    Legal 500 (IT and Telecoms) 2016

    "Highly regarded for media disputes with an EU element"
    Legal 500 (Media and entertainment) 2016

    "He has an excellent reputation as one of the senior silks in this area"
    Chambers & Partners (Media and Entertainment) 2016

    "He's a very safe pair of hands who's good on complex scientific cases"
    Chambers & Partners (Information Technology) 2016

    "Has market-leading knowledge on broadcast copyright and is a first port of call for this type of work" "He has great commercial understanding of the client's objectives and provides clear, strategic advice"
    Chambers & Partners (Intellectual Property) 2016

    "An experienced silk on big technical issues"
    Legal 500 (IT and Telecoms) 2015

    "He is very bright and industry-aware"
    Legal 500 (Media and entertainment) 2015

    "A team player who is thoughtful, cerebral and respected by the judiciary"
    Legal 500 (Intellectual Property) 2015

    "A precise, detail-oriented authority on EU law, with a software programming background he uses to outstanding effect in tech-based IP cases"
    Chambers & Partners (Information Technology) 2015

    " A cerebral lawyer, who is also accessible and a pleasant person to have on the team"
    Chambers & Partners (Media & Entertainment) 2015