Data Retention Directive invalid because it exceeds the limits of proportionality

IPPT20140408, CJEU, Digital Rights v Ireland

Privacy Law - Data Retention Directive invalid: it has exceeded the limits imposed by compliance with the principle of proportionality

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Customs authorities may initiate proceedings themselves

IPPT20140409, CJEU, Sintax Trading

Customs Seizure - Customs authorities may initiate proceedings to determine whether there has been an infringement of an intellectual property right under national law and may determine whether there has been an infringement of an intellectual property right, if the relevant decisions are subject to appeal.

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Limited jurisdiction to court of Member State within which damage is caused

IPPT20140403, CJEU, Hi Hotel v Spoering

Private International LawLitigation - A court of Member State within which damage is caused, where supposed perpetrator did not act, has jurisdiction only to rule on damage cause within territory of Member State to which it belongs

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Misinterpretation of the national law governing copyright protection

IPPT20140327, CJEU, OHIM v National Lottery Commission

Trade Mark LawGeneral Court is allowed to obtain information ex officio about  the content, conditions and scope of application by the applicant of the annulment of invoked national rules. General Court infringed adversary proceeding by basing judgment on national law and  not putting the parties in a position …

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Measures Internet provider must take to implement injunction to access a website must be effective and prevent or at least hinder unauthorized notices of protected works

IPPT20140327, CJEU, UPC Telekabel v Constantin Film

Copyright - Neighbouring Rights - ISP's: A person who makes protected subject-matter available to the public on a website without the agreement of the rightholder, is using the services of the internet service provider of the persons accessing that subject-matter

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Misleading advertising and unlawful comparative advertising are two independent infringements

IPPT20140313, CJEU, Posteshop

Advertising Law - Misleading advertising and unlawful comparative advertising are two independent infringements. Divergence between languages: where there is a divergence between various language versions of a European Union text, the provisions in question must be interpreted by reference to the general scheme and …

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Search enginge operator responsible for the processing of personal data published by third parties

IPPT20140513, CJEU, Google Spain v AEPD

Privacy -  Processing personal data by operator of search engine in searchresults. The operator of this search engine is responsible for the processing: he determines the purposes and means of that activity. Processing of the personal data of a search engine is carried out in the context of activities of the …

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Communication to new public in spa establishments - exception for spa establisments allowed

IPPT20140227, CJEU, OSA

Copyright - Communication to the public by providing access to works via television and radio devices in rooms of spa establishment.

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No act of communication to new public when clickable links provide direct access to original site

IPPT20140213, CJEU, Svensson v Retriever

Copyright - Provision of clickable links is an act of communication: making it available to indeterminate and fairly large number of recipients. No act of communication to new public when clickable links provide direct access to original site; users deemed to be part of the public taken into account during initial …

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Validity of SPC is no longer than 15 years from the first MA in the European Union

IPPT20140213, CJEU, Merck Canada

Patent Law Litigation - Tribunal Arbitral necessário must be considered to be a court or tribunal for the purposes of article 267 TFEU. SPC: validity of SPC is no longer than 15 years from the first MA in the European Union.

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European Union Institution adopted measures are actionable measures when they are intended to have binding legal effects

IPPT20140213, CJEU, Hungary v European Commission

Litigation - Geographical IndicationsAny measures adopted by the institutions of the European Union which are intended to have binding legal effects, are actionable measures (article 263 TFEU). Automatic registration  by European Commission of already protected wine names in E-Bacchusdatabase does not …

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Distribution of images possibly sufficient to be known in the course of business to the circles specialized in the sector concerned

IPPT20140213, CJEU, Gautzsch v Joseph Duna

Design Law - Litigation -  Distribution of images of a design to traders operating in the involved sector in the Union can be sufficient to be known in the course of business to the circles specialized in the sector concerned. Burden of proving: holder of protected design must bear the burden of proving that the …

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Protection when product bought in China enters territory of a Member State

IPPT20140206, CJEU, Blomqvist v Rolex

Customs Seizure - Council Regulation 1383/2003: affords protection over goods sold through an online sales website in a non-member country from the moment that the goods enter the territory of the Member State, irrespective of whether the goods were subject of an offer for sale or advertising targeting consumers of …

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If used in good faith an earlier used sign which is identical to a mark can be a due cause

IPPT20140206, CJEU, Bulldog v Redbull

Trade Mark Law - Due cause: may also relate tot the subjective interest of a third party using a sign which is identical or similar to the mark with a reputation and is intended is intended to strike a balance between the interest in question, not to resolve a conflict between a mark with reputation and a similar …

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Increased distinctiveness as a result of the use of earlier marks cannot not offset the lack of similarity between the marks at issue

IPPT20140123, CJEU, OHIM v WeserGold

Trade Mark Law - Likelihood of confusion: if it is determined that marks are not similar and the likelihood of confusion is therefore excluded, increased distinctiveness as a result of the use of earlier marks cannot not offset the lack of similarity between the marks at issue.

 

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Circumventing technological measures can be legitimate under certain circumstances

IPPT20142301, CJEU, Nintendo v PC Box

Copyright - Videogame: complex matter comprised of computer program and graphic and sound elements. Legal protection against circumventing technological measures: only applies in the light of protecting the rightholder against acts which require his authorization. A “technological measure” can also include …

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Actual use of a trade mark is relevant for consideration of invalidity because of a technical result

IPPT20140306, CJEU, Pi-Design v OHIM

Trade Mark Law - When examining whether a sign consists exclusively of the shape of goods which is necessary to obtain a technical result, the competent authority may take into account the actual use made of the trade mark following its registration.  

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Becoming a common name for end users of that product can be sufficient ground for revocation of a trade mark

IPPT20140306, CJEU, Backaldrin v Pfahnl

Trade Mark Law - Common name: Becoming a common name for end users of that product can be sufficient ground for revocation of a trade mark. The fact that the proprietor of a trade mark does not encourage sellers to make more use of a trade mark in marketing a product may be classified as ‘inactivity’ by the …

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Re-utilisation of whole or substantial part of database by dedicated meta engine

IPPT20131219, CJEU, Innoweb v Wegener

Database Rights - Re-utilisation of whole or substantial part of database by dedicated meta engine: when the end user is given the opportunity to use a form that indirectly uses data from a database protected under article 7.

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CJEU on the automatic recognition in Liechtenstein of administrative authorisation issued for a medicinal product by SwissMedic

IPPT20131114, CJEU, Astrazeneca v Patent Office

Patent Law - Placement of product on the market: administrative authorisation issued for a medicinal product by the Swiss authorities, which is automatically recognized in Liechtenstein, must be regarded as first authorisation to place that product on the market when that authorisation predates marketing …

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