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Journal of Intellectual Property Law & Practice - current issue
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Is there free-riding? A comparative analysis of the problem of protecting publishing materials online in Europe
The article focuses on the questioned legitimacy of the activity of search engines and news aggregators in indexing and displaying news and articles. This matter has been debated on various occasions in Europe, in litigation, legislation and even competition. The discussion has mostly focused on the application of copyright law to such conduct, with special attention given to the nature of linking and publishing extracts of text.
The fundamental question that legal policy-makers should ask is whether the activity of new intermediaries is purely ‘parasitic’ or whether it helps to foster development and innovation. To what extent should it be blocked or enhanced?
After an overview of the functioning of new intermediaries, the problem is considered from an economic and political perspective. The article then examines the effects of existing case law, concluding with an analysis of the different models of regulation put in place by some European countries and their effectiveness.
Over the years, case law, particularly from the European Union courts, has established and shaped the fundaments of reciprocity in European design law.
A recent judgment of the General Court of the European Union adds to this concept and allows us to expand on further details.
CJEUProprietors of Community trade mark and design rights have several advantages over national right holders. In case of cross-border infringements, the claims are based on uniform law and decisions rendered by Community Trade Mark and Design Courts with central competence have immediate legal effect throughout the Community. Nevertheless several issues remain unclear, and where such issues arise, they were not always resolved satisfactorily by the CJEU. The pertinent case-law demonstrates that the CJEU fails to appreciate the particularities of intellectual property law that accrue from the principle of territoriality. Another problem is that the CJEU uses the terms "place of infringement" and "place where the event causing damage occurred" synonymously, yet the meaningful use of these terms in industrial and intellectual property law requires a clear-cut conceptual distinction. ***
Idenix unsuccessfully argued that a cited document constituting novelty-only prior art is not entitled to its priority date due to a procedural defect rather than its substantive disclosure.
The degree of similarity required under Article 8(1)(b) and Article 8(5) of Regulation 207/2009, must be assessed differently. Article 8(1)(b requires a degree of similarity leading to a likelihood of confusion while Article 8(5) can be satisfied by a lower degree of similarity which exists whenever the relevant public make a connection between those marks or establishes a link between them. Whenever the opponent bases an opposition on both Article 8(1)(b) and Article 8(5), the court must assess the degree of similarity between the signs separately, such double assessment being avoidable only where the signs present no similarity at all.
Greek consumers perceive dominant word indication on garments as a source identifier, not as embellishment
The Athens Court of Appeal ruled that the average Greek consumer of garments perceives a word sign prominently displayed on a garment front as an origin indicator and, accordingly, rejected the relevant ‘decorative use’ defence as unsubstantiated.
When can an entrepreneur use his patronymic in the course of trade without infringing trade mark rights?
The Italian Court of Cassation has ruled that the owner of a patronymic trade mark can prevent a third party from using his patronymic name in the course of trade unless such use complies with principles of professional fairness and the name is used as a descriptive element.
The Court of Appeal has affirmed the High Court's finding that Top Shop is liable for passing off in relation to its sale of T-Shirts bearing a photographic image of Rihanna (born Robyn Fenty), which the pop star had not approved.
Court of Appeal quashes creative interpretations of Article 5(1)(a) and remits Interflora for retrial
In this decision, the Court of Appeal remitted Article 5(1)(a) of the Interflora litigation to the High Court for retrial, based on the first instance judge's erroneous interpretation of the law and assessment of the evidence in this complex area. In so doing, the Court of Appeal considered the key concepts of the average consumer, the burden of proof and initial interest confusion, as well as whether there is a duty for junior users to avoid confusion through negatively matching against third party trade marks in their online advertising.
The Scottish Society for the Prevention of Cruelty to Animals (Scottish SPCA) successfully obtained a United Kingdom trade mark registration for the slogan SCOTLAND'S ANIMAL WELFARE CHARITY.
Accessibility is the relevant criterion to determine jurisdiction in online copyright infringement cases
The Court of Justice of the European Union (CJEU) held that in online copyright infringement cases the special rule of jurisdiction in Article 5(3) of Regulation 44/2001 (the ‘Brussels I Regulation’) must be interpreted as giving jurisdiction to the courts located in the member state where the allegedly infringing content is accessible and that, in compliance with the principle of territoriality of copyright, those courts have competence only to determine the damages that have occurred therein.
The Colombian Constitutional Court has held that a copyright exception for the benefit of visually impaired persons is an affirmative action to protect their fundamental rights.
OHIM Board of Appeal's broad discretion is still subject to general legal principles of judicial review
Does the annulment of the OHIM Board of Appeal decision in Royalton/KAISERHOFF on suspension requests herald a new standard for procedural matters in appeals? The General Court has issued its first ruling annulling a substantive decision of the OHIM Board of Appeal on the basis of a manifest error of assessment. The particular issue concerned the Board's broad discretion in the procedural matter of refusing a suspension request.
This article seeks to give a quick overview of the most significant trade mark cases decided in 2014 by the Court of Justice of the European Union (CJEU) and the General Court (GC). The article has a practical bias and is aimed at readers who wish rapidly to find the key decisions of 2014.
The cases discussed concern the application of Council Regulation 207/2009 on the Community trade mark (CTMR), which replaced Regulation 40/94, Commission Regulation 2868/95 implementing the CTMR (CTMIR), and Directive 2008/95 to approximate the laws of the Member States relating to trade marks (‘the Trade Mark Directive’), which replaced Directive 89/104.
A new and non-intrusive form of IP is proposed—the priority certificate—covering unprotected subject matter such as scientific discoveries and abstract ideas. In settings such as the academia, R&D and the arts, it is important to ascertain and formally acknowledge the person entitled to priority with respect to a given discovery or abstract idea.
A priority certificate is a document attesting and formally acknowledging that the person named in such certificate is the first to discover a certain phenomenon, the first proponent of an abstract idea or theory, etc. A private party, such as a university, may grant priority certificates to parties making claims of priority. Upon examining an application submitted by a claimant, the grantor issues a priority certificate stating that claimant is the first discoverer, creator or author of the claimed subject matter. This way, the priority certificates confer upon the claimant formal recognition and prestige.
Priority certificates do not confer any exclusive economic rights (eg to sell or manufacture a product). Consequently, they do not create a monopoly and do not have the negative side effects associated with monopolies. They may be implemented by private parties (eg universities) via existing laws, such as contract law, without the need for new legislation or government action. The public can freely use any idea or discovery claimed in a priority-certificate.
In November 2013 the Slovakian Supreme Court confirmed revocation of the Green Dot trade marks for all product classes on grounds of their non-use for a continuous period of five years.
During the course of first instance and appellate proceedings a number of legal issues related to the actual character of Green Dot symbols were dealt with, including, inter alia, assessment of the basic function of a trade mark, comparison of differences between product and service marks and examination of the perception of Green Dot symbols by the relevant public.
The article also presents an analysis of possible implications of these rulings for trade mark infringement cases.