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LimeGreenIP News

DSM Watch: Leaked Compromise Proposal by JURI on the Draft Regulation on Online Transmissions and Retransmissions by Broadcasters

Not long ago, we reported on the Committee on Legal Affairs’ (JURI) decision to temporarily postpone its final vote on the new Copyright Directive (COM(2016) 593). We also pointed to some other copyright-related initiatives the European Commission had initiated under the umbrella of the Digital Single Market which have come to a slight halt right now. One example is the debate on the draft regulation dealing with online transmissions of broadcasting organisations and retransmissions of television and radio programmes (COM(2016) 594). JURI removed that topic from last meeting’s agenda (10 October 2017). However, from a draft report authored by rapporteur Tiemo Wölken that was leaked some days ago we can now see that the parliamentarians seem to be close to reaching a compromise here.

The Draft Regulation

On 14 September 2016, the European Commission presented the proposal for a regulation laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organizations and retransmissions. The Commission’s goal was and still is the facilitation of the clearance of rights related to broadcasts within the European Union. Therefore, the draft focuses on two main areas: (1) the extension of the “country of origin” principle to broadcasters own online services (so called “ancillary online services”), and (2) the technologically neutral extension of the retransmission right to certain closed networks. For more detailed information about the proposed draft, please have a look at our blog post.

Meanwhile, we are in the middle – or perhaps almost at the end? – of an intense debate on how the future regime should look . In particular, the question whether the suggested regulation could damage the general territoriality principle of copyright has been discussed with great impetus. For instance, rapporteur Tiemo Wölken published his first draft report of 10 May 2017 strongly arguing in favour of even more far-reaching provisions. The extension of the “country of origin” principle was suggested to be applied to “over-the-top” (OTT) content not directly related to a specific broadcast. Naturally, this proposal triggered manifold counter-arguments.

The Leaked Paper Continue Reading

UK: Combatting IP Crime – Annual Brands Seminar

IP crime is estimated to be worth USD 461 billion annually worldwide (OECD/EUIPO): for some businesses this means substantial loss of revenue. What practical steps can you take to tackle IP crime? How can you tackle IP crime as part of a coherent IP strategy? What impact will regulatory changes (including Brexit) have on IP crime?

On 16 November the brands team at Hogan Lovells will be hosting a seminar in London that will look to answer some of these questions.


Date: Thursday, 16 November 2017

Location: London

Time: 17:30 – 19:30


Speakers and topics

We are excited to be joined by Michael Ellis MSc (Chairman, International IP Crime Investigators College)and Sandro Chiesura (Senior Legal IP Counsel at eBay). Our panel will address several topics focused on tackling IP crime, as well as discussing practical approaches to enforcement. The topics will include:

  • Convergence of IP crime with organised crimes – asset confiscation and other pressure points
  • Dealing with IP crime – how to partner successfully with law enforcement and internet platforms
  • Tips on tackling IP crime, from false ceilings to mirroring hard drives
Click here to register your interest.

Germany: HL awarded JUVE “IP Law Firm of the Year”

We are very pleased to announce our award for Law Firm of the Year for IP at the JUVE Awards last night!

After four nominations in recent years, in which JUVE certified that we are “the Go-To-firm for difficult IP cases” and emphasised both the international and the precedence-setting nature of our German practice’s work, we are very proud of this recognition, which confirms our reputation as leaders in the German market and beyond.

 


For more information on our work in Germany, please contact the IP-BD team and check out our Integrated IP Enforcement guide covering cross-jurisdictional strategy including Germany.

U.S. : Digital Millennium Copyright Act – DMCA agent revamp, act now

 Online Service Providers (OSPs) must register under a new electronic system by December 31, 2017 but can, and should, as soon as possible.

The U.S. Copyright Office has ditched the scanned paper system for registration of DMCA Agents. OSPs seeking safe harbor protections may now register using the new electronic system, which launched December 1, 2016. Only OSPs (e.g. providers of online services or network access including sites that allow posting of user-generated content) that have registered by December 31, 2017 will continue to have Section 512 protection.

Since 2011 the Copyright Office has been considering revision of the DMCA Agent system, part of the Digital Millennium Copyright Act, enacted by Congress back in 1998, which enables online services providers to limit their liability for copyright infringement committed by their users. A condition of this “safe harbor” is that the OSP must designate an agent for receiving infringement claims both on the OSP’s own website and through the Copyright Office’s public directory of designated agents. Adapting to today’s realities, the system will now be fully electronic.

What’s new?

The new system completely replaces the former paper-based system – a reform that will be implemented by amending 37 CFR part 201.38 (full text here). The change enables service providers to submit designated agent information more efficiently, the Copyright Office to load the information loaded more quickly, and the public to search it more easily. Filing fees have been reduced from the minimum $105 to a flat fee of $6 per designation (for each filing or amendment). Automated reminders will simplify keeping contact information up-to-date. The designation will now automatically expire after three years unless it is either renewed or confirmed to be still accurate.

What do I need to do? Continue Reading

Europe: A sweet victory for Cactus – CJEU confirms principles of legitimate expectations and genuine use

(Judgment of 11 October 2017 in Case C-501/15 P – EUIPO v Cactus)

The CJEU confirms that two cases which fundamentally changed the EUIPO approach to construing the scope of protection of EUTMs do not have retroactive effects. The judgment also confirms that where there is a semantic equivalence between the verbal and figurative parts of a mark the mark can be genuinely used, even if its entire verbal element is omitted.

What was the case about?

Cactus SA brought an opposition against an EUTM application for the figurative marks incorporating the words “Cactus of Peace” and “Cactus de la Paz”. The opposition was based on a word mark for CACTUS, registered in 2002, and a figurative mark for CACTUS registered in 2001.

The marks covered a variety of goods and services including the class heading for services in class 35, namely “Advertising, business management, … business administration, office functions…

The case turned on the issue of whether the earlier marks relied upon actually covered retail services in class 35, and whether Cactus SA had shown genuine use of these marks. Continue Reading

Europe: Blockchain – How “smart” are Smart Contracts?

In this series of blog posts, we take a look at the current state of play regarding blockchain technology as well as the legal setting with a European and German focus.

How smart are smart contracts? With this question, we take a look at the next topic. After dealing with the bitcoin virtual currency in our last post, so-called “smart contracts” is another widely discussed application of blockchains.

Particularly in the financial sector, the advantages and disadvantages as well as the possibly disruptive nature of the use of smart contracts are currently being weighed-up fairly intensively. In the area of FinTech, not only are start-ups trying to use this digital technology profitably, but the “established” financial institutions alre also testing very precisely in which areas the application of smart contracts is possible and advantageous. Still, the financial industry is just one business segment in which business processes and transactions could increasingly be depicted and processed through smart contracts in the course of advancing digitization. Ultimately, this technology provides options for simplified, decentralized business transactions throughout the field of e-commerce. The trick is to use the advantages of the smart contracts and at the same time have solutions ready to deal with their disadvantages.

What are Smart Contracts?

First of all, it must be clarified that, unlike the term “contract“, a smart contract is not a contract in the civil law sense. It is a software code, more precisely, a very specific expression of a blockchain. Automatic machines – that are able to grasp the insertion of a coin and the selection of a brand of confectionery, enabling the desired product to land in the dispenser – can be considered predecessors of the smart contracts.

Modern smart contracts are designed to define what should happen when a certain predefined event occurs (if-then-logic) between two or more contract partners in one network in a decentralized manner. If, for example, a previously agreed payment is made, the delivery of goods ordered on the Internet can be triggered via the smart contract. On the other hand, actions such as payment or investment can also be triggered by the fact that a certain number of participants declare their agreement. With smart contracts, it is also easy to map complex network decisions – an advantage that should not be underestimated. Due to the decentralized storage of the blockchain, the decision processes is largely guarded from unauthorised manipulation.

One can therefore imagine a smart contract as a database, in which the most diverse events are predefined and aligned. A review of whether a particular event has occurred, enabling the next “domino” to fall is takes place in the network in a decentralized manner. This is commonly referred to as the “Smart Contract Due Diligence” (SCDD) process.

What legal aspects need to be considered? Continue Reading

A model Customs case in China: creating the right conditions for effective IP enforcement by Chinese authorities.

In May 2016, the General Administration of Customs (“GAC”) and the Public Security Bureau (“PSB”) jointly uncovered large amounts of counterfeit automobile engine lubricants. The lubricants were first sold on e-commerce platforms and then imported into China from Southeast Asia. A successful wide-scale investigation ensued, involving seamless co-operation between Customs, the PSB and the UK authorities. The case was recently chosen by the GAC as the top case of Chinese border enforcement for 2016 (see here – Chinese language), and offers some useful insights for brand owners who want to include Customs actions in their China IP enforcement strategy.

The facts of the case can be summarized as follows: after the discovery of the counterfeit lubricants, the GAC and the PSB jointly set up an investigation group including the Hangzhou, Ningbo, Guangzhou, Huangpu, and Tianjin Customs. These five Customs houses then closely monitored the amount of engine lubricants being imported from a number of flagged South-East Asian countries. Some key results from this joint investigation were:

  • 20 enforcement seizures, of which 6 were escalated to the PSB for prosecution;
  • Seizure of 80 tons of counterfeit lubricants, valued at c. RMB 9,500,000 (USD 1,447,729);
  • PSB and Customs officials closed and destroyed the contents of 5 storage houses holding counterfeit goods, arrested 11 suspects, and seized no less than 110,000 bottles of counterfeit engine lubricants.

What sets this case apart was that both Customs and the PSB mobilized a joint team to handle this case, and that this team was able to seamlessly share information and resources. Why was this case prioritized by the Chinese authorities? We believe this was due to the heavy involvement of the UK authorities (both UK Embassy staff and UK IP Office staff were involved in prioritizing and prosecuting this case), the sheer quantity and value of the counterfeit goods, and the media attention for this case.

Conclusions Continue Reading

Europe: Blockchain – The virtual currency Bitcoin

In this series of blog posts, we take a look at the current state of play regarding blockchain technology as well as the legal setting with a European and German focus.

Whoever thinks of blockchain also has inevitably bitcoins in mind. The Internet currency is largely based on the blockchain technology and it is therefore one of the most obvious fields of application for this technology, to which we recently gave an overview (see here).

In the following post, we will take a closer look at what the term “bitcoin” actually means and what legal issues are linked to it. As a virtual payment method, bitcoins are subject to regulatory regulations of the financial sector, but they also raise general questions of contractual law. The latter are particularly interesting in the light of the fact that the European Commission is currently working on a new Strategy for a Digital Single Market to re-regulate the online trade and providing digital content. There are currently two draft directives on the table (COM (2015) 634 final and COM (2015) 635 final).

What are Bitcoins?

Bitcoin is a digital unit of money which was introduced in 2009. It is a decentralized payment system that can be used all over the world, within which monetary values ​​can be transferred without a central issuing authority (central bank) or a settlement agent (main bank). The decentralized database administered by the participants in the bitcoin currency system, in which all transactions are stored in a blockchain, is the underlying basis for the bitcoin system.

By means of a peer-to-peer model, the individual users of the system check the authenticity of the respective transaction as so-called “miners” via their connected computers. In return, they receive a virtual compensation. With the aid of cryptographic techniques, the chain also ensures that transactions with bitcoins can only be carried out by the respective owner and that the same bitcoin can not be issued more than once. Bitcoin is therefore also referred to as cryptographic currency. Transactions in this currency are irrevocable – which is one of the main features of a blockchain.

The payments take place under a pseudonym. The bitcoin blockchain does not allow an immediate identification of the people making transactions. The chain of transactions is, however, freely accessible to all participants.

Proof of solvency is provided by means of a personal digital wallet – the so-called “wallet” – in which the bitcoins that have been acquired so far are located. The conversion rate of bitcoins into other means of payment is determined by supply and demand.

What legal aspects need to be considered? Continue Reading

Asia IP webinar series: The recordings so far…

We are running a series of webinars in 2017 to help you stay up to date with Intellectual Property news and developments in the Asia Pacific region.  So far we have held webinars on protecting your identity in the cyberworld, trademark protection & transactions in Asia and anti-counterfeiting/anti-piracy in Asia. If you were unable to attend, the recorded version of our first three webinars can be accessed at the following sign-up  links:

  • Creatively combatting counterfeiting and piracy with robust strategiesRecording from 17 October
  • Protecting your identity in the cyberworldRecording from 5 July
  • Trademarks – Everything you always wanted to know about but were afraid to askRecording from 25 April

Watch this space for the following upcoming topics:

Patents – Hot issues in China, Hong Kong and Japan

Trade Secrets – Have you heard ….

Trademark litigation – Winning by paying attention to the details


For more information on IP topics in Asia, please visit our free LimeGreen IP know-how platform

UPC and Germany: Status update – Constitutional complaint, ratification timeline and more

Background

The constitutional complaint against the UPC ratification that was lodged with the Federal Constitutional Court in Germany earlier this year has received a lot of attention over the past few months as it could have the potential to considerably delay the entry into force of the Agreement on a Unified Patent Court (UPCA). Pursuant to Article 89 subsection 1 UPCA it shall not enter into force prior to its ratification by the three Member States in which the highest number of European patents had effect in the year preceding the year of signing the UPCA. These three Member States are France, the United Kingdom and Germany.

The German Federal Constitutional Court has asked the German President (Frank-Walter Steinmeier) as the German head of state not to sign into law the parliamentary Act declaring Germany’s accession to the UPCA (the law of consent) pending the outcome of the constitutional complaint. The use of such an assurance by the Federal President is uncommon but has been made previously in proceedings regarding the accession to the Lisbon Treaty or the European Stability Mechanism.This measure aims to avoid Germany being bound externally by accession to an international treaty but being unable to comply with these obligations internally because the act of accession has been declared unconstitutional. Pursuant to Article 82, subsection 1 of the Basic Law for the Federal Republic of Germany (the ‘Basic Law’ [Grundgesetz]– i.e. the German constitution), the President needs to certify all laws in order for them to become effective. Article 59, subsection 1 of the Basic Law provides that the President concludes international treaties. As a consequence, this means that until the constitutional complaint proceedings are finished –provided that the law of consent hasn’t been declared void by the Constitutional Court and the Federal President certifies the law – the UPCA will not be ratified in Germany.

In the following we intend to outline the approximate length of the proceedings taking into account the different possible scenarios and what this means for the future of the UPC project. On this point the Court itself in a reply to an inquiry about the background of the complaint stated in the summer that ‘a date for the decision is presently not foreseeable’, but before looking into this in more detail we will outline the main legal arguments the complainant is making as to the alleged unconstitutionality of Germany’s accession to the UPCA.

Grounds of the Constitutional Complaint

The Constitutional compliant is based on three main grounds as follows: Continue Reading