8 NEW SQUARE

020 7405 4321

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.
 

EU Law

Martin Howe's practice is unusual for an IP practitioner in that it has a very strong EU law and public law component, extending outside the field of intellectual property into other areas of EU law and public law.

R (BAT) v Sec of State for Health [2016] EWCA Civ 1182; [2017] ETMR 9 was a judicial review brought by the tobacco companies against the standardised packaging regulations, largely based on the argument that the regulations would effectively deprive them of their property rights in their trade marks by preventing use of their marks on cigarette packs. Martin presented the trade mark and intellectual property aspects of the Secretary of State’s case, and the tobacco companies’ challenge was rejected in the High Court and Court of Appeal. The case involved a wide range of arguments, including the application of Article 1 of the ECHR First Protocol, and arguments on the justiciability of and interpretation of TRIPS (the WTO Agreement on Trade-Related Aspects of Intellectual Property).

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.

A very strong strand of Martin’s practice has been cases on the free movement of goods and services between Member States, where the free movement rules of the TFEU and competition law interact with intellectual property rights or with regulatory law. These cases have frequently taken Martin to Luxembourg on preliminary references.

He conducted the first ever case in the CJEU about the so called 'Specific Mechanism' on patent and SPC protection in relation to parallel imports of pharmaceuticals from the EU Accession States (Merck v Sigma - see Patents section for details). His involvement in free movement rules and patents goes back to Joined Cases C-267 & 268/95 Merck v Primecrown Ltd [1996] I-ECR 6285; [1997] 1 CMLR 83; [1997] FSR 237, the leading ECJ case on the parallel importation of patented products between Member States.

He acted in two cases in the Court of Appeal on the relationship between trade mark law and free movement rules under the Treaty (Flynn Pharma v Drugsrus Ltd and SEP v Doncaster - see Trade Marks and Passing Off section).

He led in the industry changing group of cases on trans border satellite broadcasting (FAPL v QC Leisure/Karen Murphy - for details of this and following cases see Copyright section) in the High Court, CJEU, Court of Appeal and Administrative Court which established the rights of people to receive broadcasts from other Member States using imported satellite decoder cards, and found that territorial restrictions on the cross border distribution of decoder cards were in breach of Article 101 TFEU.

He conducted the leading case in the CJEU on whether copyright prevents replication of computer program functionality and computer languages (SAS v WPL). He also appeared in the leading case on internet streaming of TV broadcasts (ITV v TVCatchup) which twice went to the CJEU, and the first ever case in the CJEU on circumvention of TPMs - copy protection measures (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, which was from the court of Milan) as well as from UK courts. He also conducts cases in the EU General Court, such as Max Mara v OHIM, a trade mark appeal from an OHIM Board of Appeal (for details see Trade Marks and Passing Off section).

He frequently appears in EU law related cases in the High Court and Court of Appeal, such as Alfa Laval v Separator Spares (for details see Designs section), a leading case on jurisdiction under the Brussels (Judgments) Regulation in which the Court of Appeal set aside service of a claim against his clients in England, on the ground that the claims arose out of their individual contracts of employment and should therefore have been brought in Poland.

As well as civil cases, he has also appeared in the Criminal Division of the Court of Appeal: in R v Hitendra Patel [2009] EWCA Crim 2311; [2010] 1 WLR 1011; [2010] 1 CMLR 37; [2010] Eu. L.R. 297 he appeared on appeal to argue the EU law points for a client who had been convicted of a strict liability regulatory offence based on the Medicinal Products Directive, after having unwittingly dealt in consignments of counterfeit Viagra. The appeal was allowed. He has appeared in EU law based criminal matters in the Administrative Court both on appeal from the Crown Court (Murphy v MPS), and on successful judicial reviews to set aside a search warrant on the basis of failure by Trading Standards to disclose material information to the district judge when applying for the warrant (R (Vuciterni) v Brent Magistrates), and for failure of a Crown Court to consider EU law arguments which were presented to them by the defence (Turner v Stafford Crown Court) - for details of these cases see Copyright section.

His EU law practice covers regulatory law in many fields including pharmaceuticals, agrochemicals, and food.

Case C-306/98 R v MAFF ex parte Monsanto PLC [2001] ECR I 3279: a case in the ECJ on the validity of the grant of a generic agrochemical product licence under Directive 91/414/EEC.
Case C-201/94 R. v Medicines Control Agency ex parte Smith & Nephew [1996] ECR I-5819; [1997] 1 CMLR 812: ECJ and subsequent national proceedings on the validity of a parallel import licence granted by the Agency.

Seahawk Marine Foods v Southampton Port Health Authority [2002] EHLR 306, a Court of Appeal case on the interpretation of rules on the microbiological testing of seafoods imported into a Member State.

Antonio Muñoz y Cia SA v Frumar Ltd: a case in the High Court [1999] 3 C.M.L.R. 684; [1999] F.S.R. 872; and the ECJ (Case C-253/00 [2002] ECR I 7289) brought under common agricultural policy regulations, which established through DNA testing that the defendants had applied a false variety name to their grapes and that this breach of the regulations was actionable on the part of a competitor.
 

  • 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