2024 CJEU

IPPT20241114, CJEU, Reprobel v Copaco

Provisions on fair compensation for reprography and private copying (Article 5(2)(a) and (b) of the Copyright Directive) have direct effect, allowing individuals, in the event of an incorrect transposition, to rely directly on that provision to prevent the application of national rules requiring them to pay remuneration by way of fair compensation that is contrary to it. The provision may also be relied on against an entity entrusted with the collection and distribution of fair compensation where, for the performance of that task in the public interest, the entity enjoys special powers – in particular powers to obtain information – going beyond those applicable in relations between private parties. 

IPPT20241114, CJEU, Compass Banca
The concept of ‘average consumer’ does not exclude the possibility that an individual’s decision-making capacity may be impaired by constraints: Reasonably well-informed nature does not exclude the possibility that a commercial practice may materially distort the economic behaviour of the notional consumer. Also not excluded is taking into account the influence of cognitive biases on that average consumer. However, not any risk of a cognitive bias occurring in the context of a commercial practice would necessarily have the effect of materially distorting the behaviour of that notional consumer. A commercial practice of simultaneously proposing to the consumer an offer for a personal loan and an offer for an insurance product not related to that loan does not constitute a commercial practice that is in all circumstances aggressive or unfair. Such a practice, even without a cooling-off period, does not, as such, imply acts of pressure, even if that practice is likely to create a framing bias. Directive 2005/29 must be interpreted as not precluding a national measure which allows a national authority to require that trader to grant the consumer a reasonable cooling-off period between the dates on which the insurance contract and the loan contract are signed. Once it has been established that a commercial practice adopted by a particular trader is ‘aggressive’ or, more generally, ‘unfair’. And unless there are other means less prejudicial to the freedom to conduct a business which are equally effective. Article 24 (3) of Directive 2016/97 must be interpreted as not precluding such a requirement where the commercial practice of framing is regarded as ‘agressive’ or, more generally, as ‘unfair’: That provision does not require national authorities to go beyond what this Directive calls for, but merely requires that if such products and/or services are ‘cross-sold’, the customers also have the possibility to buy them separately. Nor does it preclude those authorities from using their powers under Directive 2005/29 to put an end to an ‘agressive’ or ‘unfair’ commercial practice. 

IPPT20240919, CJEU, Parfumerie Akzente v KTF
National labelling requirements for products sold online fall outside the coordinated field of the E-Commerce Directive 2000/31. Product labelling, like packaging, shape or composition, constitutes a requirement applicable to goods as such, which the EU legislature has expressly intended to exclude from the coordinated field of Directive 2000/31. Consequently, an information society service provider is subject, on the one hand, to Directive 2000/31 with regard to requirements relating in particular to online advertising and, on the other hand, to the applicable EU rules giving effect to the labelling obligations governing the products offered for sale on its website. Language requirements for labelling ensure consumer protection and public health. The protection of public health cannot be fully ensured if consumers are not able to take note of, and understand, the information concerning the function of cosmetic products and the specific precautions to be observed in their use. 

IPPT20241024, CJEU, Kwantum v Vitra

Subject matter of applied art falls within the material scope of EU law: Provided that that subject matter can be classified as a ‘work’ within the meaning of Directive 2001/29 (Infosoc). EU law precludes Member States from applying the criterion of material reciprocity to works of applied art of which the country of origin is a third country and the author of which is a national of a third country: ‘Work’ concept Infosoc-Directive also covers third-country works of applied art, application criterion of material reciprocity would undermine the harmonisation of copyright in the internal market and it is for the EU legislature alone to determine whether the grant of the rights laid down in Art. 2(a) and art. 4(1) Infosoc-Directive should be limited. Article 351 TFEU must be interpreted as not permitting a Member State to apply the criterion of material reciprocity to a work from the United States of America: A Member State cannot rely on Article 2(7) of the Berne Convention in order to exempt itself from the obligations arising from the Infosoc-Directive and the Berne Convention does not prohibit granting copyright protection to such works and it does not preclude a claim to the benefit of any greater protection.

IPPT20241017, CJEU, Sony v Datel
No copyright protection for variable data stored and used by a computer program: The protection afforded by the Software Directive 2009/24 does not extend to the content of the variable data transferred to the RAM of a computer and used by that program in its running, in so far that content does not enable such a program to be reproduced or subsequently created. That protection is limited to the literal expression of the computer program, as reflected in the text of the source and object code. Elements which merely affect the functioning or use of the program fall outside the scope of that protection. 

IPPT20240620, CJEU, GEMA v Rangsdorf GL
The concept of ‘communication to the public’ also covers the deliberate provision, by the operator of a rented apartment building, of television sets equipped with an indoor antenna that, without further intervention, pick up signals and enable broadcasts to be made, provided that the tenants of those apartments can be regarded as a ‘new public’. Communication to the public versus mere provision of facilities: it follows from the case-law of the Court that it is, in particular, the indispensable role of the user in order to give his or her customers access to protected works and the deliberate nature of his or her intervention, in particular if that intervention is of a profit-making nature, which makes it possible to distinguish, for the purposes of applying Article 3(1) of Directive 2001/29, between, on the one hand, the ‘communication to the public’, within the meaning of that provision, and, on the other hand, the ‘mere provision of physical facilities’, within the meaning of recital 27 of that directive.

IPPT20240411, CJEU, Citadines v MPLC

A "communication to the public" within the meaning of Art. 3(1) Copyright Directive 2001 includes the provision of television sets installed in the rooms or in the fitness area of a hotel, where a signal is also retransmitted to those sets by means of that hotel’s own cable distribution network.

IPPT20240321, CJEU, Liberi editori e autori (LEA) v Jamendo
The freedom to provide services (article 56 TFEU), read in conjunction with the Collective Management Directive (2014) precludes legislation of a Member State which generally and absolutely excludes the possibility of independent management entities established in another Member State providing their copyright management services in that first Member State. Access by independent management entities to copyright management activities not exhaustively harmonised at Union level. Collective Management Directive does not preclude legislation of a Member State which generally and absolutely excludes the possibility of independent management entities established in another Member State providing their copyright management services in that first Member State. E-commerce Directive does not apply to management of copyright and neighboring rights. Management of copyright and neighboring rights does not fall within the scope of Services Directive 2006.

IPPT20240227, CJEU, EUIPO v KaiKai

Neither Article 41 Community Designs Regulation nor Article 4 of the Paris Convention provides for a 12-month period for design priority rights. Art. 4 of the Paris Convention has no direct effect in the European Union. The right of priority for filing a Community design application is governed by Article 41 of Community Designs Regulation. General Court erred in law by directly applying Article 41(1) Community Designs Regulation to right of priority based on patent. Article 41 Community Designs Regulation does not permit an application for registration of a patent to form the basis of a right of priority for a subsequent application for registration of a Community design. Time limit for claiming a right of priority is six months, as expressly stated in Art 41 Community Designs Regulation. Under Article 4 Paris Convention, a claim of priority for a design application cannot be made on the basis of an earlier patent application. It follows from a common reading of Sections A and C of Article 4 that the subsequent application must relate to "the same subject matter" as the earlier application which forms the basis for the right of priority. The claimed right of priority is more than six months before the application and rightly denied, judgment under appeal set aside.

IPPT20240130, CJEU, RTI v Agcom
Promotional announcements for radio programmes broadcast on television channels are not tv channels' own announcements. Hourly limit for television publicity spots: promotional announcements for radio programmes broadcast on television channels belonging to the same corporate group are not, in principle, announcements about those television channels’ own programmes. That is not the case where the programmes which are the subject of those promotional announcements are dissociable from the principal activity of the radio station and the television broadcaster has editorial responsibility for those programmes.

IPPT20240125, CJEU, Audi v GQ
Trade mark infringement by spare part provided with a shape similar to the trade mark if its use may adversely affect one or more functions of the trade mark (article 9(2) and (3) EUTMR). That the third party who, without the authorisation of the car manufacturer who is the proprietor of a Union trade mark, imports and offers for sale spare parts - namely, grilles for the cars of that manufacturer - which contain an element designed to affix the emblem reproducing that trade mark and the shape of which is identical or similar to that trade mark, is using, in the course of trade, a sign in a manner liable to adversely affect one or more of the functions of that same trade mark, which is a matter for the national court to ascertain. Repair clause of Article 110 of the Community Design Regulation is not applicable by analogy to trade mark law. Restriction on trademark law for indicating the intended purpose of an accessory or spare part does not preclude an injunction regarding a grille with a component similar to the trade mark, regardless of whether it is technically possible to attach the trade mark to the grille without that component. (article 14(1)(c) EUTMR)

IPPT20240118, CJEU, HP v Senetic
Free movement of goods precludes the burden of proof of exhaustion of the rights conferred by an EU trade mark being borne exclusively by the defendant: In the case that the goods bearing that trade mark, which do not bear any marking enabling third parties to identify the market on which they are intended to be marketed and which are distributed through a selective distribution network whose members may resell them only to other members of that network or to end users, have been purchased by that defendant in the European Union, or in the EEA, after having obtained an assurance from the sellers that they could be marketed legally there, and the proprietor of that trade mark refuses to carry out that verification at the purchaser’s request.

IPPT20240111, CJEU, Mylan v Gilead
Article 9(7) of the Enforcement Directive does not preclude strict liability-based national legislation which provides for a mechanism for compensation for any injury caused by a provisional measure in the context of which the court is entitled to adjust the amount of damages by taking into account the circumstances of the case, including whether the defendant played a part in the occurrence of the injury.

IPPT20240111, CJEU, Inditex v Buongiorno
Use of a trademark for the purpose of identifying or referring to goods or services is allowed when such use is necessary to indicate the intended purpose of the product (a gift card). Article 6(1)(c) of Directive 2008/95 must be interpreted as meaning that it covers use of the trade mark in the course of trade by a third party for the purpose of identifying or referring to, in accordance with honest practices in industrial or commercial matters, goods or services as those of the proprietor of that trade mark only when such use of the trade mark is necessary to indicate the intended purpose of a product marketed by that third party or of a service offered by that party.