Header graphic for print

LimeGreenIP News

Germany: Federal Constitutional Court declares preliminary injunction without cease and desist letter and hearing unconstitutional

In its decision of 30 September 2018 (1 BvR 1783/17), the German Federal Constitutional Court [Bundesverfassungsgericht – BVerfG] ruled that a preliminary injunction issued in a press-law dispute by the District Court [Landgericht – LG] of Cologne without the appellant previously having received a cease and desist letter or been heard violates the appellant’s right to procedural equality of arms [prozessuale Waffengleichheit] as set out in art. 3 para. 1 in conjunction with art. 20 para. 3 of the German Basic Law [Grundgesetz – GG], which is equivalent to a basic right.

Background

The appellant, a journalistic-editorial research network, published on its website an article reporting on corruption allegations against a company, in places citing from spoken comments at a supervisory board meeting. In response, without previously sending a cease and desist letter to the appellant, the company applied to the District Court of Cologne for a preliminary injunction to be issued to the appellant. The application was to prohibit publication of the minutes of the supervisory board meeting, be it as literal citations or summaries providing the gist.

The District Court granted the application – without giving reasons or hearing the appellant beforehand – in line with its customary practice. The appellant lodged a constitutional complaint against the decision, citing as grounds the fact that the District Court of Cologne intentionally disregarded the appellant’s rights under procedural law. The appellant stated that the District Court’s preliminary injunction – issued without an oral hearing and without a cease and desist letter having been sent beforehand – infringes its rights to due legal process, to procedural equality of arms, and to a fair trial, as well as breaching the rights to freedom of speech and of the press.

German Federal Constitutional Court Decision

In its decision, the Constitutional Court confirmed that there had been an infringement of the appellant’s right to procedural equality of arms as set out under art. 3 para 1 in conjunction with art. 20 para. 3 GG, which is equivalent to a basic right.

The principle of procedural equality of arms ensures that the parties have an equal procedural position before the judge. The Court states that the judge is obliged to ensure the equality of the parties by conducting the proceedings in an objective, fair manner:

  • by unbiased readiness to use and assess the parties’ submissions,
  • by the impartial application of law,
  • and by the correct fulfilment of his/her other procedural obligations to the parties.

Continue Reading

When 3D-printing challenges IP rights

3D-printing changes the way we develop products: an idea can be transformed into a tangible product faster than ever and it is not even expensive anymore!

But what is 3D-printing? Simply put, it is a machine that builds an object out of base materials by successively stacking thin layers of the material in accordance with a Computer-Aided Design (CAD). The major advantage over conventional moulding processes is its adaptability: one 3D-printer can print any template and does not require prefabricated moulds. The template can be created by using a CAD program or by using special 3D-scanners if the object already exists.

The first patent application in connection with 3D-printing was filed in the 1980s, but it took decades for 3D-printing to become as viable as it is nowadays. Today, 3D-printing offers various printing methods and can print almost anything from medicine, weapons, to organs and even food (Bioprinting). This versatility allows 3D printing to revolutionize almost every industry sector.

Since the prices have fallen, 3D-printers are no longer just a product for the industry but for everyone. On the Internet, templates can be exchanged on online forums (both legally and illegally).

Businesses need to take note

Entrepreneurs should acknowledge the potential of this technology and should not be lagging behind developments in this area. However, despite its benefits, 3D-printing also poses risks with regard to IP rights:

  • For example, the question of liability is raised where print shops create products from originals provided by third parties and from online file-sharing networks for 3D-print templates.
  • Also, users of 3D-printers have to make sure that no IP rights, e.g. patents, designs and trademarks, will be infringed.
  • If you commission another company to create templates for your own 3D-printers, or if you delegate the entire print job to them, it should be ensured that you will have full legal access to the result.
  • Finally, if 3D-printed products impair your IP rights, you should be well prepared to request the destruction of the products and assert claims for injunctive relief and damages against the infringer. Also, the circulation of the CAD in online forums should be stopped by requesting the operators to remove the template and to prevent a re-upload.

Want to know more? For futher information on the impact of 3D printing across industry sectors and legal fields, please visit our HL.com topic center and read our related posts.

Five steps to rehabilitate a brand in the midst of a crisis: Total Brand Care

It is essential that companies take a global and holistic approach to creating, commercializing, and protecting their brands and their value. When an organization experiences a public relations disaster, what is the role of communications in minimizing the impact to its brand as part of its overall Total Brand Care strategy?

In this hoganlovells.com interview, Mark Irion, head of the Strategic Communications practice at Hogan Lovells, outlines five distinct steps to create a communications plan that incorporates legal, reputation, and brand strategies:

  1. Disclose all the facts
  2. Use the facts to tell the story
  3. Get in front of the story
  4. Embrace the truth
  5. Never go it alone

As Irion explains, when a company is in crisis, its reputation is at risk. The company’s ability to redeem or rehabilitate itself, or make itself less vulnerable to that risk, is fundamentally a matter of trust. Does the company have a large enough reservoir of trust with its customers, regulators, or community to survive and thrive in the wake of a crisis event? That depends on the nature of the crisis, Irion says, and whether the company has a system in place to contain the crisis.

Read the full interview on HL.com here


At Hogan Lovells, Total Brand Care is our firmwide holistic approach to protecting our clients’ most valuable asset — their brands. For more information, visit our topic center and catch our related LimeGreen IP posts

.DE ups security with 100,000 DNSSEC domain names

DENIC, the Registry responsible for running the .DE namespace, recently announced that 100,000 .DE domain names have been registered using Domain Name System Security Extension (DNSSEC).

DENIC introduced DNSSEC as an option for .DE domain names in 2011.  According to the Registry, there has been steady growth in the number of .DE domain names being registered with this increased security since 2015.

DNSSEC was designed and implemented as a response to the inherent security vulnerabilities in the way that the Domain Name System (DNS) operates.  Due to these inherent vulnerabilities, it is possible to divert Internet users away from their intended website destinations and to redirect them to third-party websites without their knowledge.  This can result in the dissemination of computer viruses, malware and even theft of sensitive financial and personal data.

DNSSEC seeks to mitigate this situation by introducing additional security at the level of the domain name servers, which ensures that Internet users are alerted to any possible re-direction to a third-party website that is not their intended destination.  DENIC introduced this additional layer of security to protect websites associated with .DE domain names from online attacks.  These online attacks can take the form of ‘DNS spoofing’ (where a hacker gains access to the domain name servers on which a domain name is hosted in order to redirect visitors to a website of the hacker’s choosing) or ‘DNS hijacking’ (where a hacker can modify the domain name’s server data to gain control of it).

Online attacks can also be used to try and obtain users’ personal information, such as bank details.  This type of fraudulent activity is not only a serious threat to users, but can also have a detrimental effect on the domain name holder and their online business.  Such fraudulent activity can result in a loss of revenue as well as a loss in consumer confidence in relation to the online business in question.  Thus, DNSSEC aims to build a ‘chain of trust’ between users and the websites they visit.

To visit the DENIC website please click here.


This post is selected from our Anchovy News publication: Anchovy® is our comprehensive and centralised online brand protection service for global domain name strategy, including new gTLDs together with portfolio management and global enforcement using a unique and exclusive online platform developed in-house. For more information please contact us at  anchovynews@hoganlovells.com 

CJEU pokes holes in copyright protection for the taste of cheese

This week, the European Court of Justice (CJEU) ruled that the taste of cheese does not enjoy any copyright protection (C-310/17). Although this preliminary ruling procedure from the Netherlands may sound bizarre, the effects of the decision should not be underestimated: for the first time, the CJEU had to make a direct statement on the requirements for a work to be protected under copyright. It is therefore to be expected that the decision in the Levola Hengelo case will be frequently cited in future proceedings on questions when something qualifies as a copyright protected work.

Background

The case is easily summarized: cheese producer Levola Hengelo claims that its competitor Smilde copied the taste of the specially produced “Heksnkaas” (a cheese spread) and considers this as a copyright infringement. The cheese producer’s claim was rejected by the Rechtbank Gelderland, the court in first instance. After filing the appeal, the Gerechtshof Arnhem-Leeuwarden now has to decide on the lawsuit. But is there any copyright protection for the taste of “Heksnkaas“? In order to answer this question, the court turned to the CJEU, which has so far essentially remained silent on the subject of the protectability of copyright protected works.

In his Opinion published on 25 July 2018, Advocate General Wathelet argued in detail against the possibility of protecting the taste of cheese. Referring to international copyright treaties and drawing a parallel to the Sieckmann case (C-273/00; on the protectability of smells under trademark law), the Advocate General came to the conclusion that works protected by copyright must be recognizable with sufficient accuracy and objectivity – which, however, must be denied in the case of the taste of cheese. Continue Reading

To tariff or not to tariff: China’s alleged intellectual property theft from the United States

As of this writing, the United States recently halted trade negotiations with China particularly as related to trade tariffs for alleged “unfair trade practices” under Section 301. Though it may be popular to label the Trump administration’s latest tariffs on China as part of an ongoing “trade war”, the response elides a significant point: that imposing tariffs may be one of the only “strong ways” to force China to stop what the U.S. President alleges are “unfair trade practices” by improperly taking valuable U.S. intellectual property (IP).

Much of these trade tariff enforcement actions by the U.S. President are in efforts to force China to implement more fair laws and procedures for U.S. entities operating within China’s borders and to reduce improper actions by China individuals or entities within the U.S. borders.

The “unfair trade practices” by China with respect to alleged intellectual property theft are estimated to cost the U.S. between US$22.5 and US$60 billion dollars a year — whether it is a Beijing-based wind turbine company stealing trade secrets from a Massachusetts company or a string of large U.S. chemical companies investing in China with the risk of losing their IP rights as part of current Chinese law.

Of late, China has given exceptions to certain industries in areas where it believes it lags behind — electric vehicles or downstream petrochemical companies, for instance — but energy companies investing in China need to be up to date on these exceptions. There also are ways in which organizations can structure investments so as to reduce the risk of losing significant IP rights to China. For one, when negotiating joint ventures (JV), companies need to consider terminating the JV when it wants to withdraw and thereby terminating any associated IP license associated with the venture — otherwise, Chinese law dictates that the JV may be able to continue to be able to use the IP brought in during the JV formation. Continue Reading

Brexit: UK Cabinet backs the Withdrawal Agreement – but what does it say about IP?

Last night the UK Cabinet backed the Withdrawal Agreement and Political Declaration on the Future Relationship agreed between the respective negotiating teams of the UK Government and the EU Commission. The Withdrawal Agreement covers the protection of existing unitary intellectual property rights in Articles 54 to 61. The detail has not changed in any material way from the draft Withdrawal Agreement published in February 2018. In short, existing unitary IPR (i.e. registered EU trade marks, registered community designs, unregistered community designs and also protected EU geographical indications) is continued automatically with equivalent separate UK protection granted to unitary IPR rights holders at no cost to them. For our comments on the detail of Articles 54 to 60 (previously Articles 50 to 57) read our earlier blog here. There are further hurdles to overcome before the Withdrawal Agreement is signed however. The EU27 leaders must sign off on the Withdrawal Agreement before the draft is presented to UK Parliament for a “meaningful vote” in early December. The risk of the UK exiting with “no deal” therefore still remains. For more information read the blog on what happens now on our Brexit Hub.

The key documents, including the Draft Withdrawal Agreement and Political Declaration can now be found here.

Adoptive T cell therapies: How “game changing” cancer treatments are challenging patent law

In this article, first published in the November edition of Intellectual Property Magazine, Stephen Bennett and Mary Foord-Weston examine how new therapies for cancer treatment are challenging patent law. The authors discuss protecting IP in individual medicine, defining the product, process claims, dosage regimen claims and what’s next for adoptice T cell therapies

With two products being recommended for marketing authorisations in the EU at the end of June, followed by one of the fastest funding approvals in the NHS’s history, adoptive T cell (“ATC”) therapies have hit the headlines in recent months. Frequently referred to as “game changers”, these new therapies promise to radically change cancer treatment and have already demonstrated the ability to produce durable remissions in patients whose disease has proved resistant to conventional treatment. IP practitioners working in the pharmaceutical sector can increasingly expect to encounter T cell therapies in the near future, as these treatments reach the market and competing companies jostle to position themselves as industry leaders.

The growing maze of overlapping patents, the prevalence of collaboration and licensing agreements and the ongoing involvement of academic institutions means that there is likely to be litigation in Europe in the coming years, as has already been the case in the USA [1].

We explore what makes T cell therapies different to previous cancer drugs and how the departure from small molecule pharmaceuticals towards cell-based therapies blurs the line between patient and medicine. This is likely to place pressures on the existing IP system as it struggles to cope with the pace of change in personalised medicines. Continue Reading

Domain Names: .ME to allow IDN registrations

doMEn d.o.o., the Registry for the .ME country code Top Level Domain (ccTLD), has recently announced that it would soon allow the registration of Internationalised Domain Names (IDNs) under .ME.

IDNs are domain names that contain at least one non-ASCII character – for example, a character with diacritics like é, ü, ñ, or a Chinese character like 飛.

Registering IDNs is already possible in many ccTLDs such as Belgium (.BE), Brazil (.BR), China (.CN), Hong Kong (.HK), France (.FR), Germany (.DE), Greece (.GR), Hungary (.HU), Spain (.ES) or Tuvalu (.tv), and in most generic Top Level Domains (gTLDs).

The .ME Registry is planning to launch IDN registrations on 12 November 2018, allowing characters from the following languages: Arabic, Belarusian, Bosnian, Bulgarian, Chinese, Croatian, Danish, French, German, Icelandic, Italian, Hindi, Hungarian, Korean, Latvian, Lithuanian, Macedonian, Montenegrin, Polish, Portuguese, Russian, Serbian, Spanish, Swedish, Turkish and Ukrainian.

The .ME ccTLD was launched in 2008 and has proven quite popular since then.  By 2010, over 320,000 .ME domain names had already been registered, which made it the fastest selling debut TLD.  At the time of writing, according to DomainTools, the ccTLD counts over 892,500 registered domain names.  The launch of .ME IDNs will undoubtedly raise this number.


This post is selected from our Anchovy News publication: Anchovy® is our comprehensive and centralised online brand protection service for global domain name strategy, including new gTLDs together with portfolio management and global enforcement using a unique and exclusive online platform developed in-house. For more information please contact us at  anchovynews@hoganlovells.com 

China: New national-level Appeal Court – Cautious hopes for improved consistency and efficiency in high-tech IP / patent cases

On 26 October 2018, the Standing Committee of China’s National People’s Congress (NPC) issued a Decision setting out the establishment of a new IP Court of Appeals at the national level within the Supreme People’s Court (SPC). This Decision will come into effect on 1 January 2019.

The Decision provides that the SPC will have appropriate jurisdiction to handle: (1) all appeals against first instance civil judgments in technology-related IP cases and (2) all appeals against administrative judgments issued by the Beijing IP Court pertaining to invention and utility model patent cases (i.e. appeals against the rulings of the Beijing IP Court regarding Patent Review Board decisions). Technology-related cases here are defined as cases regarding invention and utility model patents, new varieties of plants, layout designs of integrated circuits, technical trade secrets, computer software and anti-trust cases, and thus do not include cases involving design patents  In other words, for patent cases and other cases involving complex technology, the appellant may bypass the higher/highest court at the provincial level altogether and appeal the intermediate or IP court’s ruling directly to the SPC. This is a groundbreaking event for IP in China as this NPC Decision essentially establishes a specialized IP appellate court (within the SPC) to specifically hear complex patent cases- which is akin to the role of the Court of Appeals for the Federal Circuit (“CAFC”) in the United States. Please find below an updated high-level view of the appeals process for Chinese IP matters (click to enlarge):

Even though the creation of a national level IP centric Court of Appeals has been a topic of great interest and discussion in China for quite some time, some aspects of the new IP Appellate Court still come as a surprise for most practitioners. Continue Reading