Genuine use in a different form of a trademark without altering the disctinctive character

IPPT20121025, CJEU, Rintisch v Eder

Trade Mark Law - Genuine use trademark by use in a different form without altering the distinctive character, even if different form is registered as (defensive) trademark

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Actual lodged application for registration of a trademark and objective need for a national body constitutes a permitted test case

IPPT20120619, CJEU, CIPA v Registrar (IP-Translator)

Trade Mark Law - Goods and services classification needs to be sufficiently clear and precise; use of general indications of class headings not precluded, but in principle specification of particular goods and services required. Permitted test case: actual lodged application for registration of trade mark and …

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Informed user can have an imperfect recollection

IPPT20121018, CJEU, Neuman v Baena Grupo

Design Law - Community design not invalid based on older Community trademark: difference in facial expression is a fundamental characteristic that is remembered by informed user. Correct criterion by basing its reasoning on the informed user’s imperfect recollection of overall impression and by taking into …

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Liability for sending and receiving sui generis databases

IPPT20121018, CJEU, Football Dataco v Sportradar

Database Rights - ‘Re-utilisation’ of database in Member State: the sending by one person of data by means of a web server located in Member State A to the computer of another person in Member State B, at that person’s request constitutes an act of ‘re-utilisation’ of data by the sender, when there is …

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Unfair commercial practice by giving the false impression that consumer has already won a prize when he first has to incur costs to claim it

IPPT20121018, CJEU, Purely Creative

Advertising Law - Unfair Commercial Practices - Unfair commercial practice when giving the false impression that consumer has already won a prize, while consumer has to incur (minimal) costs first to claim the prize

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Communication of OHIM that opposition is admissible is not only a procedural measure

IPPT20121018, CJEU, Jager & Polacek

Trade Mark Law - Litigation - Communication of OHIM to opposing party that opposition is admissible, is not simply a procedural measure but a decision which may only be revoked or annulled in accordance with Trademark Regulation

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Sufficient disclosure to satisfy requirements of article 57 EPC regarding “a practical application” and “some profitable use"

IPPT20111102, UKSC, Human Genome Sciences v Eli Lilly

Patent Law - Sufficient disclosure to satisfy requirements of article 57 EPC regarding “a practical application” and “some profitable use”. Supremacy principles laid down by the Board’s jurisprudence. No different assessment of evidence if one concludes that the disclosure satisfies article 57 in line with …

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Only the day, not the hour and minute of filing an application for a Community trade mark, is relevant to determinate which application is older

IPPT20120322, CJEU Genesis v Boys Toys

Trade Mark Law - Only the day, not the hour and minute of filing an application for a Community trade mark, is relevant to determinate which application is older.

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'Easily digestible'accompanied by reference to reduced acidity prohibited 'health claim' for wine

IPPT20120906, CJEU, Deutsches Weintor v Land Rheinland-Pfalz

Advertising Law - ‘Easily digestible’ accompanied by reference to reduced acidity is a prohibited “health claim” for wine. Prohibition of a correct claim warranted by the requirement to ensure a  high level of health protection for consumers

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OHIM is not obliged to extend the examination of the distinctive character from the applied trademark to other uses than those considered to be the most likely

IPPT20120426, CJEU, Deichmann v OHIM

Trade Mark Law - Court of First Instance made no error in law by ruling that the mark applied for does not deviate from the standard or from what is customary in the footwear industry and therefore has no distinctive character in relation to orthopedic footwear. OHIM is not obliged to extend the examination of the …

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No equivalent protection of gamblers in different Member States

IPPT20120712, CJEU, Hit Larix v Bundesminister

Advertising Law - Prohibition of advertising games of chance permitted if other Member State does not provide equivalent protection of gamblers

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Partner who is not authorised to commercial use of a trade mark is not a 'licensee of prior rights' for purposes of eu-domain name registration

IPPT20120719, CJEU, Pie Optiek v Bureau Gevers

Trade Mark Law - EU Domain Name Law - Contractual partner who is solely authorised by proprietor trade mark to register eu-domain name, but not authorised to commercial use, is not a “licensee of prior rights” for purposes of eu-domain name registration

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Irreconcilable judgments are possible in cases of infringement by companies of same national part of European Patent with same product

IPPT20120712, CJEU, Solvay v Honeywell

Patent Law - Private International Law - Litigation - Possibility of irreconcilable judgments (article 6 EEX Convention) if companies are each separately accused of infringement of same national part of European patent with same product. Exclusive jurisdiction regarding validity does not preclude special jurisdiction …

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No economic activity public authority by acting on statutory obligations

IPPT20120712, CJEU, Compass-Datenbank v Republik Osterreich

Abuse of a dominant position - No economic activity public authority by acting on statutory obligations; no undertaking (abuse of dominant position)

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Reasonable compensation does not include costs incurred for monitoring compliance

IPPT20120705, CJEU, Geistbeck v Saatgut

Plant Variety Rights - “Reasonable compensation” in case of infringement variety right equivalent to C-licence: fee payable in the same area for production under licence of propagating material  of same variety. "Reasonable compensation” does not include costs incurred for monitoring compliance.

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Distribution to the public in a Member State when the public is targetted and delivery is enabled, whether or not via a third party

IPPT20120621, CJEU, Donner

CopyrightDistribution to the public in a Member State: when a trader targets the public in that Member State and enables delivery in that Member State, whether or not via a third party. Articles 34 and 36 TFEU do not preclude (national) criminal prosecution for prohibited distribution to the public, concluded in …

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Mere existence of earlier authorisation veterinary medicinal product does not preclude SPC for different application within basic patent

IPPT20120719, CJEU, Neurim v Comptroller-General of Patents

Patent Law - Mere existence of earlier authorisation veterinary medicinal product does not preclude SPC for different application within basic patent. Article 13 SPC Regulation: marketing authorisation (MA) of product which is within basic patent. Irrelevant whether same active ingredient is present in two medicinal …

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General Court has incorrectly ruled in opposition proceedings that ‘F1’ element in national trademark is generic, descriptive and devoid of any distinctive character

IPPT20120524, CJEU, Formula One v OHIM

Trade Mark Law - General Court has incorrectly ruled in opposition proceedings that ‘F1’ element in national trademark is generic, descriptive and devoid of any distinctive character. Validity of national trade marks not to be questioned during opposition proceedings Community trade mark. Distinctive character …

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Actual and present harm to a mark is required and cannot be hypthetical

IPPT20120510, CJEU, L'Oreal v OHIM

Trade Mark Law - Actual and present harm to mark is required, which can be based on prima facie evidence of a future risk, which is not hypothetical. Reputation of the trade mark Botox with respect to each of the categories comprising the relevant public. Reputation examined in relation to the entire territory of the …

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Sign consisting of the shape of a rabbit with red ribbon is devoid of any distinctive character

IPPT20120524, CJEU, Lindt v OHIM

Trade Mark Law - Ruling on proper grounds that sign consisting of shape of a rabbit with red ribbon is devoid of any distinctive character. Registrations already made in Member States may be taken into account, but OHIM under no obligation to follow national assessments in relation to Community trade mark

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