2007
Print this pageIPPT20071213, ECJ, UPC cs v Belgium State
Must-carry obligation acceptable when pursues an aim in the general interest, is not disproportionate, and must be subject to a transparent procedure based on objective non-discriminatory criteria known in advance.
IPPT20071122, ECJ, Fincas Tarragona
The earlier trade mark must be well known throughout the territory of the Member State of registration or in a substantial part of it - Directive 89/104/EEC – Article 4(2)(d) – Knowledge of the trade mark – Geographical area.
IPPT20071122, ECHR, Voskuil v The Netherlands
The right of journalists not to disclose their sources: The Court is struck by the lengths to which the Netherlands authorities were prepared to go to learn his or her identity. The Court finds that the facts to be considered tip the balance of competing interests in favour of the interest of democratic society in securing a free press.
IPPT20071115, ECJ, Commission v Germany (Garlic extract powder capsule)
Failure of a Member State to fulfil its obligations – Article 28 EC and Article 30 EC – Directive 2001/83/EC – Garlic preparation in capsule form – Preparation legally marketed as a food supplement in a number of Member States – Preparation classified as a medicinal product in the Member State of importation – Definition of ‘medicinal product’ – Obstacle – Justification – Public health – Proportionality.
National provisions such as those at issue in the main proceedings – in so far as such provisions introduced, after the implementation of Directive 83/189, the obligation to affix the distinctive sign ‘SIAE’ to CDs of works of figurative art for the purposes of marketing them in the Member State concerned – constitute a technical regulation which, if not notified to the Commission, cannot be invoked against an individual.
IPPT20071108, ECJ, Ludwigs Apotheke v Juers Pharma
Free movement of goods – Articles 28 EC and 30 EC – Articles 11 and 13 of the EEA Agreement – Imported medicinal products not authorised in the importing State – Prohibition of advertising – Directive 2001/83/EC.
Directives 2001/83/EC and 92/28/EEC – National leg-islation prohibiting advertising of medicinal products by way of statements of third parties or prize draws – Use of generally positive results of a consumer survey and a monthly prize draw to win a pack of the product.
It is possible not only that, because of linguistic, cultural, social and economic differences, a trade mark which is devoid of distinctive character in one Member State is not so in another Member State, but also that a mark devoid of distinctive character at Community level is not so in a Member State.
IPPT20071018, ECJ, KommAustria v ORF
Freedom to provide services – Television broadcasting activities – Directives 89/552/EEC and 97/36/EC – Definition of ‘teleshopping’ and ‘television advertising’ – Prize game.
IPPT20071011, ECJ, Freeport v Arnoldsson
International jurisdiction in case of connected claims; different legal bases does not preclude application article 6(1)
Court of First Instance based its assessment as to whether the mark applied for has distinctive character on the overall impression which is conveyed by the shape and the arrangement of the colours of that mark, and, second, that it established that that mark does not make it possible to distinguish the product from those of competitors in the sector in question.
IPPT20070920, ECJ, State v Antroposana
That products coming within the definition of ‘medicinal products’ in Article 1(2) of Directive 2001/83 which are not mentioned in the Annex to Regulation No 2309/93, now replaced by the Annex to Regulation No 726/2004, must be registered under one of the procedures laid down in the aforementioned directive.
IPPT20070920, ECJ, Benetton v G-Star
The shape of a product which gives substantial value to that product cannot constitute a trade mark where attractiveness of a shape acquired prior to the date of application for registration on account of recognition of it as a distinctive sign.
Registration of the trade mark BAINBRIDGE – Opposition by the proprie-tor of earlier national trade marks all having the component ‘Bridge’ in common – Opposition rejected – Family of trade marks – Proof of use – Concept of ‘defensive trade marks’.
Agreement establishing the World Trade Organisation – Article 33 TRIPs – Patents – Minimum term of protection – Legislation of a Member State providing for a lesser term – Article 234 EC– Jurisdiction of the Court – Direct effect.
Articles 5(1)(a) and 6(1)(a) of First Di-rective 89/104/EEC – Right of the proprietor of a registered trade mark to oppose the use by a third party of a sign which is identical to the mark – Use of the sign as a company, trade or shop name – Right of the third party to use his name.
[G 1/06] Sequences of divisionals: In the case of a sequence of applications consisting of a root (originating) application followed by divisional applications, each divided from its predecessor, it is a necessary and sufficient condition for a divisional application of that sequence to comply with Article 76(1), second sentence, EPC that anything disclosed in that divisional application be directly and unambiguously derivable from what is disclosed in each of the preceding applications as filed
IPPT20070628, EBA-EPO, Astropower
[G 1/05] Amendment divisional application extending beyond original application: So far as Article 76(1) EPC is concerned, a divisional application which at its actual date of filing contains subject matter extending beyond the content of the earlier application as filed can be amended later in order that its subject-matter no longer so extends, even at a time when the earlier application is no longer pending. Furthermore, the same limitations apply to these amendments as to amendments to any other (non-divisional) applications.
IPPT20070622, Court of Appeal, London, Pozzoli v BDMO
Assessing obviousness: (1) (a) Identify the notional “person skilled in the art” (b) Identify the relevant common general knowledge of that person; (2) Identify the inventive concept of the claim in question or if that cannot readily be done, construe it; (3) Identify what, if any, differences exist between the matter cited as forming part of the “state of the art” and the inventive concept of the claim or the claim as construed; (4) Viewed without any knowledge of the alleged invention as claimed, do those differences constitute steps which would have been obvious to the person skilled in the art or do they require any degree of invention?
IPPT20070614, ECJ, Le Chef de Cuisine
Obstacles having a direct relationship with a trade mark which make its use impossible or unreasonable and which are independent of the will of the proprietor of that mark constitute ‘proper reasons for non-use’ of the mark.
Regulation (EC) No 40/94 – Article 8(1)(b) – Likelihood of confusion – Application for a figurative Community trade mark with the word elements ‘Limoncello della Costiera Amalfitana’ and ‘shaker’ – Opposition by the proprietor of the national word mark LIMONCHELO.
A national provision under which private individuals are prohibited from importing alcoholic beverages, must be assessed in the light of Article 28 EC and not in the light of Article 31 EC - Measure is a quantitative restriction on imports - Measure is unsuitable and not proportionate.
Regulation (EC) No 40/94 – Article 8(1)(b) – Relative ground for refusal of registration – Likelihood of confusion – Article 43(2) and (3) – Genuine use – New plea – Word mark ‘TRAVATAN’ – Opposition by proprietor of earlier national trade mark ‘TRIVASTAN’.
IPPT20070426, ECJ, Boehringer Ingelheim v Swingward II
Repackaging of the product bearing the trade mark: the repackaging of the pharmaceutical product be necessary for its further commercialisation, as one of the conditions is directed solely at the fact of repackaging and not at the manner and style of the repackaging.
It does not follow from the Court’s case-law that the prior analysis of each of the elements of which a mark is composed is an essential step - its distinctive character may be assessed in relation to each of its elements depend on an appraisal of the whole which they comprise.
Directives 84/450/EEC and 97/55/EC – Comparative advertising – Identifying a competitor or the goods or services offered by a competitor – Goods or services satisfying the same needs or with the same purpose – Reference to designations of origin.
In a case where a basic patent protects a second medical use of an active ingredient, that use does not form an integral part of the definition of the product.
IPPT20070315, ECJ, T.I.M.E. v OHIM
Fact that earlier mark is only of weak distinctive character is not of overriding importance. Entitled to consider whether any of the marks has a clear and specific meaning. Marketing circumstances may not be taken into account since these may vary in time
IPPT20070313, ECJ, Kaul v Bayer
The Board of Appeal is required to take account of the facts and evidence submitted for the first time by the party opposing an application for registration of a mark in the written statement lodged in support of its appeal before that board against a decision given by an Opposition Division.
Freedom of establishment – Freedom to provide ser-vices – Interpretation of Articles 43 EC and 49 EC – Games of chance – Collection of bets on sporting events – Licensing requirement – Exclusion of certain operators by reason of their type of corporate form – Requirement of police authorisation – Criminal penalties.
IPPT20070215, ECJ, The Kitchen Company
Directive 89/104/EEC – Application for registration of a trade mark for a range of goods and services – Examination of the sign by the compe-tent authority – Taking account of all the relevant facts and circumstances – Jurisdiction of the national court seised of an action.
Right of a trade mark proprie-tor to prevent use by a third party of a sign identical or similar to the trade mark – Trade mark registered for motor vehicles and for toys – Reproduction of the trade mark by a third party on scale models of that make of vehicle.
IPPT20070125, ECHR, Vereinigung Bildender Künstler v Austria
Offend, shock or disturb: Freedom of expression is applicable to “information” or “ideas” that offend, shock or disturb the State or any section of the population. Those who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society. Hence the obligation on the State not to encroach unduly on their freedom of expression.Injunction disproportionate
Three condition for a sign: trademark must be (a) a sign; (b) that sign must be capable of being represented graphically; and (c) the sign must be capable of distinguishing the goods or services of one undertaking from those of other undertakings. Transparent bin or collection chamber forming part of the external surface of a vacuum cleaner.
IPPT20070111, ECJ, Commission v Ireland
From the obligation to remunerate authors for the lending carried out by them, Ireland has failed to fulfil its obligations.
IPPT20070111, ECHR, Anheuser Busch v Portugal
Trademark application is a possession: a set of proprietary rights that were recognized under Portuguese law, even though they could be revoked under certain conditions.
