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Journal of Intellectual Property Law & Practice - current issue
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Updated: 26 weeks 5 days ago
According to the Court of Justice of the European Union (CJEU), adidas’ three stripes prevent a rival from gaining a foothold in footwear.
The InfoSoc Directive (2001/29/EC) aimed at harmonising copyright-related aspects within the EU. Article 5(2)(b) of the Directive, which concerns private copying has given rise to numerous cases, largely concerning the amount of the relevant fair compensation to be paid to right holders. Copydan Båndkopi v Nokia Denmark is one such case where the Court of Justice of the European Union (CJEU) was called upon to decide whether a private copying levy can be imposed on mobile telephone memory cards and multi-functional memory devices. Within the ambit of the InfoSoc Directive, the CJEU decided that Member States can formulate legislation that levies private copying on multi-functional devices like memory cards, even if the primary function of the device is not to facilitate private copying.
The drink name ‘Verlados’ is in breach of the Geographical Indications (GI) Regulation on spirits and must be changed to comply with EU law; the Court of Justice of the European Union (CJEU) confirms a broad interpretation of the term ‘evocation’ with regard to GIs in relation to names of sprits; the ‘ados’ in ‘Verlados’ evokes the word ‘Calvados’, a drink name protected under the GI Regulation, making its alluding use unlawful under EU law.
The use in the course of trade of the denominations ‘Balsamico’ and ‘Aceto Balsamico’ in connection with vinegar-based products, other than those protected under the geographical indication ‘Aceto Balsamico di Modena’ (protected geographical indication (PGI)), is an evocation of such registered geographical indication. Therefore, the use of a component of a registered name for a geographical indication can be prohibited even when such component is not protected on its own insofar as it creates a misleading association with the protected geographical indication in the minds of consumers.
The Hong Kong Court of Final Appeal (HKCFA) clarified several key questions on Hong Kong intellectual property law, including the applicability of the United States approach of ‘dilution’ in the law of passing-off, and the proper construction and application of the Hong Kong Trade Marks Ordinance.
The Patents Court has refused to stay English proceedings pending a final decision on validity in parallel proceedings before the European Patent Office, on the basis that a stay would preclude the timely determination of the infringement issues and, in the circumstances of the case, cause significant commercial uncertainty.
The Full Federal Court of Australia has decided that the word YELLOW wholly lacks distinctiveness as a trade mark for business directories, confirming that it is relevant to consider evidence of use of the sign in a particular trade when assessing the level of inherent distinctiveness possessed by a sign.
In its decision of 20 October 2015, the Brussels Court of Appeal had to rule on exhaustion of trade mark rights in a case with respect to printer cartridges. The court ruled that a contractual retention of ownership may bar exhaustion.
A tale of whisky and sorrow: the Court of Justice says that misapplication of EU rules on exhaustion of trade mark rights is not a breach of public policy
The Court of Justice of the European Union (CJEU) has clarified that a misapplication of the EU provisions on the exhaustion of trade mark rights made in a judgment delivered in one Member State does not constitute an infringement of an EU essential rule; therefore, such a misapplication cannot be considered as a breach of public policy within the meaning of Article 34(1) of EU Regulation 44/2001 upon which to rely to oppose, with the result that the said misapplication cannot be relied upon as ground of opposition to the recognition of that judgment in another Member State where an action for damages was brought for the losses caused by the execution of an unjustified customs seizure of trade-marked products.