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In respect of an olfactory sign, the requirements of graphic representability are not satisfied by a chemical formula, by a description in written words, by the deposit of an odour sample or by a combination of those elements.
A Member State may, if it sees fit, and subject to such conditions as it may determine, protect a trade mark against use of a sign other than for the purposes of distinguishing goods or services, where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.
The exercise of the trademark right must be reserved to cases in which a third party's use of the sign affects the functions of the trade mark, in particular its essential function of guaranteeing to consumers the origin of the goods. It is immaterial that in the context of that use the sign is perceived as a badge of support for or loyalty or affilia-tion to the proprietor of the mark. Post-sale confusion.
[T 0641/00] Invention can only be made up of those features which contribute to technical character: where a feature cannot be considered as contributing to the solution of any technical problem by providing a technical effect it has no significance for the purpose of assessing inventive step.Formulation technical problem: non-technical feauture of claim may legitimately appear in the formulation of the problem
Two generic terms coupled together have to possess an additional characteristic such as to confer on the sign, taken as a whole, a distinctive character. A sign is to be refused registration where it is descriptive in the language of one Member State.
Cessation of the validity of a parallel import licence following the withdrawal of the marketing authorisation of reference constitutes a restriction on the free movement of goods. A risk to public health arising from the coexistence of the two versions may justify restrictions on the importation of the old version.
Products are not covered by the system of derogations set up by Article 13(2) where they originate in the State of the PDO the protection of which under Article 13(1)(a) and (b) of Regulation No 2081/92 is at issue and they do not meet the product specification for that PDO.
The grounds for refusal have been listed in an exhaustive manner. The criteria for assessing the distinctive character are the same for all categories of trade marks. Extensive use of a sign may be sufficient to give the sign a distinctive character.
Where the essential functional characteristics of the shape of a product are attributable solely to the technical result, Article 3(1)(e), second indent, precludes registration of a sign consisting of that shape, even if that technical result can be achieved by other shapes.
The prohibition of discrimination precludes the term of protection granted by the legislation of a Member State to the works of an author who is a national of another Member State being shorter than the term granted to the works of its own nationals.
Purely descriptive reference in order to reveal the characteristics of the product does not infringe the exclusive right of the proprietor of the trade mark
Article 7(2) of the Directive must be interpreted as meaning that a trade mark proprietor may rely on its trade mark rights in order to prevent a parallel importer from repackaging pharmaceutical products unless the exercise of those rights contributes to artificial partitioning of the markets between Member States.
Replacement packaging of pharmaceutical products is objectively necessary if, without such repackaging, effective access to the market concerned must be considered to be hindered as the result of strong resistance from a significant proportion of consumers to relabelled pharmaceutical products.
Equivalence: For an embodiment that is outside the literal meaning of a patent claim to fall within the scope of protection, it is not sufficient (1) that it solves the problem underlying the invention by means that, although modified, objectively have the same technical effect, and (2) the person skilled in the art is able to determine on the basis of his professional knowledge only, that the modified element has the same effect, but it is also required (3) that the considerations, which the skilled person has to apply to determine that the modified element has the same effect, are drawn from the technical teaching of the patent.
IPPT20020312, BGH, Schneidmesser II
Equivalence: If the patent, when viewed objectively, does not cover the technical content of the invention, protection is limited to what corresponds with the literal meaning of the claims.
IPPT20020312,BGH, Custodiol II
Scope of protection: Interpretation of claim with figures and dimensions: The extent to which figures or dimensions in a claim are binding is not to be determined by their relationship to the state of the art. However, this does not prevent details about the state of the art in the description from being used to interpret such specifications.
Scope of protection. Prosecution history: In principle the prosecution history is not relevant for determining the scope of protection of a patent. The examination of equivalence and its recognizability for the person skilled in the art must be based on the (specific) effect of the feature in its specific limitation by figures in the context of the patent claim.
IPPT20020218, EBA-EPO, HOWARD FLOREY
[T 0641/00] Admissibility of joint opposition or joint appeal