2008
Print this pageIPPT20081222, ECJ, The Wellcome Foundation v Paranova - Zovirax
Where repackaging is necessary the packaging should be assessed only against the condition that it should not be liable to damage the reputation. It is for the parallel importer to furnish the proprietor of the trade mark with information to enable the latter to determine whether the repackaging is necessary. This information may not be used to enable the trade mark proprietor to detect weaknesses in his sales organisation.
Counteraction of similarities: Case-law shows that the global assessment of the likelihood of confusion implies that conceptual differences between two signs may counteract aural and visual similarities between them, provided that at least one of those signs has, from the point of view of the relevant public, a clear and specific meaning, so that the public is capable of grasping it immediately.
IPPT20081216, ECJ, Huber v Germany
Processing of personal data relating to foreign nationals: Permissible if it contains only the data which are necessary for the application of legislation and it enables that legislation to be more effectively applied. Not permissible is a system for processing per-sonal data specific to foreign nationals for the purpose of fighting crime.
Processing of personal data for journalistic purposes: If their object is the disclosure to the public of information, opinions or ideas, irrespective of the medium which is used to transmit them. They are not limited to media undertakings and may be undertaken for profit-making purposes.
IPPT20081211, ECJ, Gateway v OHIM
Likelihood of confusion (i) not subject to overall impression being dominated by earlier mark, (ii) but subject to signs being similar or identical. Degree of renown irrelevant to determine similarities between signs.
IPPT20081211, ECJ, Kanal 5 and TV 4 v STIM
Abuse of a dominant position by copyright management organisation: A remuneration model according to which the amount of the royalties corresponds to the use is not abuse of a dominant position. Using a different remuneration model for commercial companies and public service undertakings is abuse of a dominant position.
IPPT20081209, ECJ, Radetzky-Orden v BKFR
Genuine use by a non-profit-making association: A trade mark is put to genuine use where a non-profit-making association uses the trade mark, in its relations with the public, in announcements of forthcoming events, on business papers and on advertising material and where the association’s members wear badges featuring that trade mark when collecting and distributing donations.
IPPT20081127, ECJ, Intel v CPM - Intelmark
Trade marks with a reputation: Interpretation of a "link" between the earlier mark and the later mark. Use which takes or would take unfair advantage of, or is or would be detrimental to, the distinctive character or the repute of the earlier trade mark
IPPT20081125, EBA-EPO, Stem cells
[G 2/06] Products derived from destruction of human embryos excluded from patentability: No patenting of products prepared exclusively by method involving destruction of human embryos, even if method is not claimed.Not of relevance that after the filing date the same products could be obtained without having to recur to a method necessarily involving the destruction of human embryos. Application Rule 28(c) EPC to all pending applications. Request for preliminary ruling by ECJ inadmissable.
IPPT20081114, CFI, Artisjus v Commission
Lack of urgency interim measures
IPPT20081112, CFI, Lego v OHIM
Lego trademark invalid: Essential characteristics of shape consisting exclusively of intended technical result, even if that result can be achieved by other shapes using the same or another technical solution. The essential characteristics of a shape must be determined objectively, on the basis of its graphic representation and any descriptions filed at the time of the application for the trade mark perception consumer is not relevant.
IPPT20081030, CAFC, in re Bilski
The machine-or-transformation test: A claimed process is surely patenteligible under § 101 if:(1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing. The “useful, concrete and tangible result” inquiry is inadequate and reaffirm that the machine-or-transformation test, properly applied, is the governing test for determining patent eligibility of a process under §101
IPPT20081016, ECJ, Bundesverband v Deutsche Internet Versicherung
Contactinformation serviceprovider: a service provider is required to supply, before the conclusion of a contract, in addition to its electronic mail address, other information, which does not necessarily have to be a telephone number.
IPPT20081009, ECJ, Directmedia v Albert-Ludwigs-Universitat Freiburg
Extraction: On-screen consultation and individual assessment of the material contained in the database is capable of constituting an ‘extraction’ to the extent that that operation amounts to the transfer of a substantial part of the contents of the protected database.
IPPT20081002, ECJ, K-Swiss v BHIM
Where OHIM is unable to prove that a document has been duly notified, or if provisions relating to its notification have not been observed, but that document has reached the addressee, OHIM may produce proof of the date of receipt and that the document is deemed to have been notified on that date.
An undertaking which, in order to put a stop to parallel exports carried out by certain wholesalers, refuses to meet ordinary orders from those whole-salers, is abusing its dominant position.
IPPT20080717, ECJ, Aire Limpio
Succesful opposition: Weak inherent distinctive character does not preclude acquiring distinctive character when a mark is well known. Evidence of distinctive character: Account may be taken of evidence which, although subsequent to the date of filing the application, enables the drawing of conclusions on the situation as it was on that date.
IPPT20080709, UKHL, Conor v Angiotech
Sufficiency and obviousness: Threshold test that specification discloses enough to make the invention plausible; […] that the patent will work. Obviousness and obvious to try: Patent law does not require demonstration that taxol actually works to prevent restenosis. Correct question was whether it was obvious to use a taxol-coated stent to prevent restenosis.
Prohibition of the use of the term ‘Tocai’ for Italian wines, after the expiry on 31 March 2007 of a transitional period, is in agreement with the applicable regulations.
IPPT20080612, ECJ, O2 v Hutchinson 3G
Use of a mark in comparative advertisement is not permitted when there is likelihood of confusion. The proprietor of a registered trade mark is not entitled to prevent the use of the mark in comparative advertising where such use does not give rise to a likelihood of confusion.
Eurohypo does not have a distinctive character: No additional element to make the combination, created by the current and usual components EURO and HYPO, unusual or have its own meaning which distinguishes the services offered by the appellant from those of a different commercial origin.
IPPT20080417, ECJ, Peek & Cloppenburg v Cassina
Distribution demands transfer ownership of object: That the concept of distribution to the public, otherwise than through sale, of the original of a work or a copy thereof, for the purpose of Article 4(1) of Directive 2001/29, applies only where there is a transfer of the ownership of that object.
IPPT20080410, ECJ, Adidas v Marca, H&M and Vendex
The requirement of availability cannot be taken into account in the assessment of the scope of the exclusive rights of the proprietor of a trade mark, except in so far as the limitation of the effects of the trade mark defined in Article 6(1)(b) of the Directive applies.
IPPT20080410, Court of Appeal, London, Lundbeck v Generics
Novelty: disclosure of the racemate did not disclose the isolated enantiomer; no enabling anticipation. In order to anticipate a patent, the prior art must disclose the claimed invention and (together with common general knowledge) enable the ordinary skilled person to perform it.Obviousness: Not obvious to try. Sufficiency: In an ordinary product claim, the product is the invention. It is sufficiently enabled if the specification and common general knowledge enables the skilled person to make it. One method is enough. When a product claim satisfies the requirements of section 1 of the 1977 Act, the technical contribution to the art is the product and not the process by which it was made, even if that process was the only inventive step.
IPPT20080313, ECJ, Schneider v Rheinland-Pfalz
The use of a particular relating to the production or ageing method or the quality of a wine may be permitted under those provisions only if there is no risk that it will mislead the persons to whom it is addressed by creating confusion between that particular and the other traditional terms.
National legislation prohibiting advertising of dental care services permissible.
The use of the name ‘Parmesan’ must be regarded as an evocation of the PDO ‘Parmigiano Reggiano’. The Commission has not established that, by formally refusing to proceed against the use on its territory of the name ‘Parme-san’ on the labelling of products which do not comply with the requirements of the specification for the PDO ‘Parmigiano Reggiano’, the Federal Republic of Germany has failed to fulfil its obliga-tions under Article 13(1)(b) of Council Regulation (EEC) No 2081/92.
IPPT20080214, ECJ, Varec v Belgian State
Respect business secrecy: The body responsible for the reviews must ensure that confidentiality and business secrecy are safe-guarded in respect of information contained in files communicated to that body by the parties to an action, although it may apprise itself of such information and take it into consideration.
IPPT20080214, ECJ, Dynamic Medien v Avides Media
Age-limit label: Free movement of goods does not preclude national rules, which prohibit the sale and transfer by mail order of image storage media which do not bear a label from that authority or that body indicating the age from which they may be viewed.
IPPT20080129, ECJ, Promusicae v Telefonica - KaZaa
Directives 2000/31, 2001/29, 2004/48 and 2002/58 do not require the Member States to lay down an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings.
