Only two weeks ago, the Federal Court of Justice (BGH) referred various questions to the Court of Justice of the European Union (CJEU) concerning the liability of the video platform YouTube. There, the court’s queries focused on who is actually responsible for unlawfully uploaded content – just the uploader himself or the service provider as
This week, copyright is all over the place. After the European Parliament voted on proposed copyright reform in Europe last Wednesday (12 September 2018), the long-awaited decision of the German Federal Court of Justice (BGH) on the question to what extent video platforms such as YouTube carry out their own acts of use, i.e. a
Court of Justice of the European Union, 6 September 2018, Case C-488/16 P BSGE v EUIPO/Freistaat Bayern King Ludwig II. of Bavaria was without a doubt an architectural visionary. During his reign in the second half of the 19th century, he initiated the construction of various impressive buildings all across his kingdom which now form
The Administrative Court of Lazio (“TAR Lazio”) decided with judgment No. 09050 of 3 July 2018 (but published only few days ago) that, as a rule, the parallel importer does not have a right to change the trademark affixed on the product purchased in the country of origin in order to use a different trademark
Over the first half year, we have covered a number of high profile cases heard before the General Court (GC) and the European Court of Justice (CJEU). Here’s a quick roundup of the cases with a takeaway summary for each: Preliminary ruling on designs which are solely dictated by technical functions “The court considered the
This is, in essence, the fundamental question that has been submitted to the CJEU in the case C-310/17 (Levola Hengelo v. Smile Foods). The opinion of Advocate General Wathelet (read it here, no English version yet) released on 25 July 2018 is that the taste of food (in this case of cheese) is not protectable
Ever since the European Court of Justice (CJEU) in its highly regarded UsedSoft ruling declared the resale of “used” software admissible (dated 3 July 2012, C-128/11), the discussion has persistently centered around the question whether the idea of the so-called exhaustion, upon which UsedSoft is essentially based, could or should be extended to other digital
In the context of the KitKat shape mark saga, in Société des produits Nestlé SA v Mondelez UK Holdings & Services Ltd and another (Joined Cases C-84/17 P, C-85/17 P and C-95/17 P), the CJEU provided significant guidance on the evidence required to prove acquired distinctiveness throughout the EU. The Court confirmed that where a
The long-awaited Louboutin judgment has finally been delivered (here). The judgment is not only interesting on a substantive level, but also surrounded by a variety of procedural peculiarities: The oral hearing was re-opened (which happens very rarely!), and as a consequence, the Advocate General had to issue a second opinion. Lastly, the judgment was issued
Court of Justice of the European Union, judgment of 7 June 2018, C-44/17 Glen is a Gaelic word with a wonderful lyrical sound to it and reminiscent of idyllic remote Scottish valleys with the mists from the last rain perpetually lingering over their green slopes. Also, it happens that 31 out of 116 Scottish distilleries
Since its inception, the harmonised national EU trade mark legislation – and later the EUTM system – has opted for a flexible approach to non-traditional trade marks. In principle “any sign” capable of indicating origin may constitute a trade mark, resulting in several non-traditional marks being registered. These include colours, shapes, sounds, smells, patterns, holograms,
Background By judgment of 19 April 2018 (C‑478/16 P in French here and here), the CJEU rejected an appeal filed by the company Group OOD who had opposed an EUTM application for a figurative mark based on unregistered trade mark rights for bus transport services in Bulgaria, the Czech Republic, Hungary and Slovakia. The case
The concept of a “communication to the public” under the InfoSoc Directive has given rise to a great many cases yet the meaning remains somewhat uncertain. In a case brought by the German Federal Court of Justice (Bundesgerichtshof), the Court of Justice of the European Union (CJEU) will soon have to add a further piece
The long-awaited Advocate General’s second opinion in Louboutin (C 163/16) was delivered in February. In a nutshell, Christian Louboutin sued Van Haren Schoenen BV for trade mark infringement in the Netherlands of its Benelux trade mark shown below: Following Van Haren’s counterclaim that the above trade mark was invalid, the Dutch national court referred the
On 8 March 2018, the CJEU issued a preliminary ruling in a case that had been referred by the Higher Regional Court of Düsseldorf, Germany. The decision concerns Article 8 (1) of Regulation No 6/2002 which excludes the features of appearance of a product from protection which are solely dictated by its technical function. If all features
The General Court has once again upheld adidas’ oppositions against two copycat applications for two stripes positioned on a shoe. The two decisions issued on 1 March 2018 (in Cases T-629/16 and T-85/16) come as part of the long-standing trade mark dispute between adidas and Shoe Branding*. The cases involved Shoe Branding’s two applications for
German Federal Court of Justice rules on the scope of jurisdiction of national courts In an online context, IP infringement frequently occurs simultaneously in more than one country and so the flexibility to take action where it will have the greatest impact is critical. The German Federal Court of Justice has recently ruled on the
The CJEU has just been posed the following questions on the interpretation of Article 97(5) of the EU Trade Mark Regulation ((EC) No. 207/2009) by the English Court of Appeal. The questions concern jurisdiction to hear EU trade mark infringement claims in a cross-border online advertisement and sale case and the answers will have consequences not
The phenomenon of so-called “Hate Speech” has been in the public eye for a while now, but particularly in German news. Hate speech denotes verbal attacks and accusations based on personal attributes such as race, religion, ethnic origin, sexual orientation, disability, or gender. Victims of such disgraceful conduct can be individuals or groups of individuals.
The recently published draft of the Act amending the Industrial Property Law (14 November 2017) introduces fundamental changes in the provisions on trademark protection. Currently, the bill is being agreed upon in the Council of Ministers. The new regulations primarily result from the need to implement Directive of the European Parliament and of the Council
The colour of a product plays an important role in identifying its commercial origin. For this reason, seeking protection for abstract colour marks is a very valuable asset in trade. An example of this type of mark and its use is the colour combination Green / Yellow by John Deere as seen here: The European
The UK government’s draft EU Withdrawal Bill (the “Brexit Bill“) aims to incorporate EU directives and regulations into UK domestic law in their current form immediately following Brexit (“Retained EU Law“). This article considers the impact the Brexit Bill will have on some key patent issues. The Brexit Bill and EU Decisions In addition to
(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
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