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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.
 

Data Protection

There are comparatively few cases in the data protection field which go to the higher courts. Martin Howe has appeared in one in the Supreme Court and in another in the Court of Appeal (see below). He has a significant advisory practice on data protection law (including the Privacy and Electronic Communications (EC Directive) Regulations 2003), particularly on issues which involve difficult points of principle.

Rugby Football Union v CIS Ltd (formerly Viagogo Ltd) [2012] UKSC 55; [2012] 1 WLR. 3333; [2013] 1 All ER 928; [2013] 1 CMLR 56; [2013] EMLR 25; [2013] HRLR 8; [2013] FSR 23, in which Martin acted for the appellants, was the first ever application of the EU Charter of Fundamental Rights at UK Supreme Court level in the balancing of rights of individuals to protect their personal data against the claims of rights owners for disclosure under Norwich Pharmacal in order that they could pursue actions.

Johnson v Medical Defence Union Ltd [2007] EWCA Civ 262; [2007] 3 CMLR 9: the claimant, a surgeon and long standing member of the MDU, was removed from membership without warning under an internal 'risk assessment' procedure, despite the fact that no claims for negligence had been made against him in the course of his career. He applied for and obtained copies of the files relating to this procedure under the Data Protection Act 1998. He brought this action to challenge the fairness of the way the MDU had processed his personal data and their failure to give advance notice to him that his personal data would be used in this procedure. The trial judge (Rimer J) held that the use of information about him in the risk assessment procedure was 'processing' under the Act, and that the MDU was in breach of the Act by failing to notify him that certain data obtained from third parties would be used in considering his case. However, the MDU were held entitled to operate a policy under which they considered simply the existence of allegations or complaints in assessing risk and did not pay regard to their merits, and it was held that the Act did not entitle a data subject to question the fairness of that commercial policy. The Court of Appeal decided by a majority (Buxton and Longmore LJJ, Arden LJ dissenting) that the relevant step of the risk assessment procedure was not "processing" under the Act since it was performed by human mental processes rather than by machine.
 

  • 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