2010

IPPT20101222, CJEU, Bayerische Brauerbund v Bavaria

The date of the entry into force of the registration of the Protected Geographical Indication in accordance with the simplified procedure constitutes the reference date for the purposes of Article 14(1) of Regulation No 2081/92.

 

IPPT20101222, CJEU, Bezpečnostní softwarová asociace

Graphic user interface not a form of expression of a computer program: a graphic user interface is not a form of ex-pression of that program within the meaning of Article 1(2) of Directive 91/250 and thus is not protected by copyright as a computer program under that directive. Such an interface can be protected by copyright if that interface is its author’s own intellectual creation. Criterion of originality cannot be met by compo-nents of the graphic user interface which are differentiated only by their technical function. Broadcasting of graphic user interface no com-munication to the public: television broadcasting of a graphic user interfa-ce does not constitute communication to the public of a work protected by copyright within the mea-ning of Article 3(1) of Directive 2001/29.

 

IPPT20101216, CJEU, Natuur en Milieu v Ctgb

Interest of protection of industrial or commercial secret may be outweighed public interest served by disclosure. the balancing exercise on a case by case basis. Term ‘environmental information’ includes information submitted for the authorisation f a plant protection product.

 

IPPT20101209, EBA-EPO, Essentially Biological Process

Excluded essentially biological process: process containing sexually crossing. Excluded also if process of sexually crossing contains technical step enabling or assisting sexual crossing. Non-excluded; process containing step which by it-self introduces or modifies a trait in the genome of the plant produced.  Nature of additional technical step irrelevant.

 

IPPT20101207, CJEU, Pammer & Hotel Alpenhof

“Directing” activity on website to Member State: it should be ascertained whether it is apparent from those websites and the trader’s overall activity that the trader was envisaging doing business with consumers domiciled in one or more Member States. Not exhaustive list of relevant matters.

 

IPPT20101118, CJEU, Lidl v Vierzon Distribution

Comparative advertising: sufficient degree of interchangeability. Misleading comparison: (i) if it is found, that the decision to buy on the part of a significant number of consumers to whom the advertisement is addressed may be made in the mistaken belief that the selection of goods made by the advertiser is representative of the general level of his prices as compared with those charged by his competitor, or (ii) if it is found that, for the purposes of a comparison based solely on price, food products were selected which, nevertheless, have different features capable of significantly affecting the average consumer’s choice, without such differences being apparent from the advertising concerned. Verifiability of comparative advertising

 

IPPT20101111, CJEU, Lovells v Bayer
SPC possible in case of a provisional market authorization for plant protection product: In the light of all those considerations, the answer to the question referred is that Article 3(1)(b) of Regulation No 1610/96 must be interpreted as not precluding a supplementary protection certificate from being issued for a plant protection product in respect of which a valid MA has been granted pursuant to Article 8(1) of Directive 91/414.

 

IPPT20101109, CJEU, Mediaprint v Österreich
Offer linked to purchase of newspaper not as such an unfiar commercial practice: to be verified whether it is contrary to requirements of professional diligence. In the light of the whole of the above, the answer to the first question must be that the Directive must be interpreted as precluding a national provision, such as that at issue in the main proceedings, which lays down a general prohibition on sales with bonuses and is not only designed to protect consumers but also pursues other objectives.

 

IPPT20101021, CJEU, Padawan v SGAE
Link necessary between the levy to finance fair compensation and the deemed use of digital reproduction equipment. Fair compensation - damages: Based on harm caused to authors by the introduction of the private copying exception

 

IPPT20100914, ECHR, Sanoma v The Netherlands

Protection journalistic sources: chilling effect:  The present case concerns an order for the compulsory surrender of journalistic material which contained information capable of identifying journalistic sources. This suffices for the Court to find that this order constitutes, in itself, an interference with the applicant company's freedom to receive and impart information under Article 10 § 1. Deficient quality of the law: not “prescribed by law”.

 

IPPT20100914, CJEU, Lego v OHIM
Sign consisting ‘exclusively’ of the shape of goods which is necessary to obtain a technical result: condition is fulfilled when all the essential characteristics of a shape perform a technical function, the presence of nonessential characteristics with no technical function being irrelevant in that context. Shape ‘necessary’ to obtain the technical result intended – alternative solutions. Identification “essential elements”. Assessing technical functionality: documents relating to previous patents

 

IPPT20100909, CJEU, OHIM v BORCO

Distinctive character: Whether a sign is capable of distinguishing as a trademark has to be assessed in the context of an examination, based on facts. It is not open to OHIM, without relevant justification, to rely on conjecture or mere doubts. OHIM is required to examine, of its own motion, the relevant facts – no reversal of burden of proof

 

IPPT20100902, CJEU, Calvin Klein v OHIM
Conduct of applicant not relevant in case of opposition ex article 8 TM Reg. Where there is no similarity the reputation or goodwill of older mark is irrelevant. No similarity because of different overall impression of mark "Creaciones Kennya". Similarity required for taking unfair advantage of or being detrimental to repute of mark

 

IPPT20100902, CJEU, Kirin Amgen v Lietuvos Respublikos
Transitional law Supplementary Protection certificate: No SPC available for products for which a Community authorisation to place that product on the market as a medicinal product was obtained more than six months before the accession of the Republic of Lithuania acceded to the European Union, but for which product did not obtain a marketing authorisation in Lithuania

 

IPPT20100729, CJEU, Anheuser-Busch v BHIM - Budweiser
Burden of proof: Agency competent to require proof that an earlier mark has been renewed, but proof that an earlier mark has been renewed won’t be given spontaneously. New plea which extends the subject-matter of the dispute cannot be introuduced in appeal

 

IPPT20100713, BGH, Klammernahtgerät
Enabling public availability: An invention is available to the public in an enabling manner when the information in the patent application discloses so much technical information to the person skilled in the art that he is able to successfully execute the invention. It is not necessary that as a minimum an embodiment that can be used as such is directly and unambiguously disclosed

 

IPPT20100708, CJEU, Sjöberg & Gerdin

Stricter penalties for promoting foreign gambling precluded: that Article 49 EC must be interpreted as precluding legislation of a Member State subjecting gambling to a system of exclusive rights, according to which the promotion of gambling organised in another Member State is subject to stricter penalties than the promotion of gambling operated on national territory without a licence. It is for the referring court to ascertain whether that is true of the national legislation at issue in the main actions. Prohibition on advertising of foreign gambling not precluded

 

IPPT20100708, CJEU, Portakabin v Primakabin
Use of key word infringing in case of adverse effect on the function of indicating origin. Use prohibited by article 5 will generally not be in accordance with honest practices in industrial or commercial matters. Exhaustion: Use of mark permitted unless there is a legitimate reason.

 

IPPT20100706, CJEU, Monsanto v Cefetra
Patent protection DNA-sequence limited to circumstances in which it performs the patented function: not conferring patent right protection in circumstances such as those of the case in the main proceedings, in which the patented product is contained in the soy meal, where it does not perform the function for which it was patented, but did perform that function previously in the soy plant, of which the meal is a processed product, or would possibly again be able to perform that function after it had been extracted from the soy meal and inserted into the cell of a living organism. Exhaustive harmonisation Article 9 Biotech-directive.
National law precluded from granting broader protection. Relationship TRIPS and article 9 Biotech-Directive

 

IPPT20100701, GCEU, AstraZeneca

the Commission applied Article 82 EC correctly in taking the view that the submission to the patent offices of objectively misleading representations by an undertaking in a dominant position which are of such a nature as to lead those offices to grant it SPCs to which it is not entitled or to which it is entitled for a shorter period, thus resulting in a restriction or elimination of competition, constituted an abuse of that position. The question whether those representations were objectively misleading must be assessed in the light of the specific circumstances and context of each individual case.

 

IPPT20100628, USSC, Bilski v Kappos

The machine-or-transformation test is not the sole test for patent eligibility under §101. Business methods not categorically excluded from “process”. Abstract ideas are not patentable processes. Three exceptions to broad principles of patentability: “laws of nature, physical phenomena, and abstract ideas.” No further definition of patentable process required.

 

IPPT20100624, CJEU, Barbara Becker
Assesment of conceptual similarity: the General Court erred in law in basing its assessment of the conceptual similarity of the marks on general considerations taken from the case-law without analysing all the relevant factors specific to the case, in disregard of the requirement of an overall assessment of the likelihood of confusion, taking account of all factors relevant to the circumstances of the case, and based on the overall impression produced by the marks at issue.

 

IPPT20100622, GCEU, Shenzhen v BHIM
Made available to the public at trade fair and specialised press: Informed user - no technical expert: With regard to the interpretation of the concept of informed user, the status of ‘user’ implies that the person concerned uses the product in which the design is incorporated, in accordance with the purpose for which that product is intended. However, contrary to what the applicant claims, that factor does not imply that the informed user is able to distinguish, beyond the experience gained by using the product concerned, the aspects of the appearance of the product which are dictated by the product’s technical function from those which are arbitrary

 

IPPT20100615, GCEU, X Technology Swiss v OHIM
Inherently distinctive character unsubstantiated: there is nothing to suggest that any commercial success of the applicant would have been due to the fact that the orange colouring of the toes of the socks which it manufactures would have been perceived by the relevant public as being inherently distinctive.

 

IPPT20100603, CJEU, Sporting Exchange v Sporttotalisator
Prohibition on legitimate foreign operator from offering games of chance via the internet: therefore, the answer to the first question is that Article 49 EC must be interpreted as not precluding legislation of a Member State, such as the legislation at issue in the main proceedings, under which exclusive rights to organise and promote games of chance are conferred on a single operator, and which prohibits any other operator, including an operator established in another Member State, from offering via the internet services within the scope of that regime in the territory of the first Member State. Obligation of transparancy applicable to granting of license

 

IPPT20100603, CJEU, Ladbrokes v Sporttotalisator
Exclusive license limiting freedom to provide services – for national court to determine. Blocking access to internet site for Dutch residents is an indispensible element. ational court not required to determine compatability of implementing measure in each case. Prohibition on legitimate foreign operator from offering games of chance via the internet

 

IPPT20100603, CJEU, Internetportal v Schlicht

Bad faith EU-domain name registration: must be interpreted as meaning that bad faith can be established by circumstances other than those listed in Article 21(3)(a) to (e) of that regulation.That, in order to assess whether there is conduct in bad faith within the meaning of Article 21(1)(b) of Regulation No 874/2004, read in conjunction with Article 21(3) thereof, the national court must take into consideration all the relevant factors specific to the particular case and, in particular, the conditions under which registration of the trade mark was obtained and those under which the .eu top level domain name was registered

 

IPPT20100603, CJEU, Coty v Simex

Consent – exhaustion – not likely in case of perfume testers with a prohibition on sale: In circumstances such as those of the main proceedings, where ‘perfume testers’ are made available, without transfer of ownership and with a prohibition on sale, to intermediaries who are contractually bound to the trade mark proprietor for the purpose of allowing their customers to test the contents, where the trade mark proprietor may at any time recall those goods and where the presentation of the goods is clearly distinguishable from that of the bottles of perfume normally made available to the intermediaries by the trade mark proprietor, the fact that those testers are bottles of perfume which bear not only the word ‘Demonstration’ but also the statement ‘Not for Sale’ precludes, in the absence of any evidence to the contrary, which it is for the national court to assess, a finding that the trade mark proprietor impliedly consented to putting them on the market.

 

IPPT20100512, EBA-EPO, Computer Implemented Inventions

[G 3/08] Referral non-admissable: no conflict in case law of Boards of Appeal. The present position of the case law is thus that a claim in the area of computer programs can avoid exclusion under Articles 52(2)(c) and (3) EPC merely by explicitly mentioning the use of a computer or a computer-readable storage medium. If a claim to program X falls under the exclusion of Articles 52(2) and (3) EPC, a claim which specifies no more than "Program X on a computer-readable storage medium," or "A method of operating a computer according to program X," will always still fail to be patentable for lack of an inventive step under Articles 52(1) and 56 EPC.

 

IPPT20100422, BGH, Dynamische Dokumentengenerierung
Technical character data processing system. A method consisting of the direct interaction between elements of a data processing system has technical character irrespective of whether it is defined by technical features. Such a method is not excluded from patentability if it solves a concrete technical problem with technical means. A solution with technical means requires that system components are modified or addressed in a new manner. It is sufficient that the execution of a computer program, used for solving the technical problem, is determined by technical features outside the com-puter or, if the solution consists in making a computer program, that the program takes into account the technical restrictions of the computer.

 

IPPT20100415, CJEU, VEGAP v ADAGP - Dali

Permissible restriction of the transfer on succession of the resale right to the artist's heirs: Article 6(1) of Directive 2001/84 must be interpreted as not precluding a provision of national law which reserves the benefit of the resale right to the artist’s heirs at law alone, to the exclusion of testa-mentary legatees. It is for the referring court to take due account of all the relevant rules for the resolution of conflicts of laws relating to the transfer on succession of the resale right.

 

IPPT20100415, CJEU, Heine v Verbracherzentrale

Right of withdrawal: consumer may not be charged with the cost of delivering the goods: Article 6(1) and Article 6(2) of Directive 97/7/EC must be interpreted as precluding national legislation which allows the supplier under a distance contract to charge the costs of delivering the goods to the consumer where the latter exercises his right of withdrawal.

 

IPPT20100415, CJEU, Schräder v CBP

A species is composed of its different varieties: The very nature of a ‘species’ is that it is composed of its different varieties and, for this reason, a detailed description of such a species cannot be detached from the varieties which it comprises. Limited review to determine variety lacking distinctness.

 

IPPT20100325, CJEU, BergSpechte v Trekking.at Reisen

Use of trade marks as keywords in search engine advertising service: Proprietor is entitled to prohibit in the case where that ad does not enable an average internet user, or enables that user only with difficulty, to ascertain whether the goods or services referred to therein originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party.

 

IPPT20100323, CJEU, Google Adwords

Use of trade marks as keywords in search engine advertising service: That the proprietor of a trade mark is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with that trade mark which that advertiser has. No use of the sign by internet referecing service provider. Internet referencing service provider not liable when it has played a passive role.

 

IPPT20100318, CJEU, Hotelier
Communication to the public: The hotelier, by installing televisions in his hotel rooms and by connecting them to the central antenna of the hotel, thereby, and without more, carries out an act of communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

 

IPPT20100316, CJEU, Olympique Lyonnais v Olivier Bernard and Newcastle

Rules requiring a 'joueur espoir' are a restriction on freedom of movement for workers: Rules according to which a ‘joueur espoir’, at the end of his training period, is required, under pain of being sued for damages, to sign a professional contract with the club which trained him are likely to discourage that player from exercising his right of free movement.

 

IPPT20100303, TBA-EPO, Bayer Schering

[T 1063/06] Reach-through claim, also directed to future inventions: Patent protection limited to actual disclosed contribution to the art. Insufficient disclosure: In the absence of any selection rule in the application in suit, the skilled person, without the possibility of having recourse to his common general knowledge, must resort to trial-and-error experimentation on arbitrarily selected chemical compounds to establish whether they possess the capability according to the claim; this represents for the skilled person an invitation to perform a research programme and thus an undue burden.

 

IPPT20100225, CJEU, Lancôme v OHIM - Color Edition

‘Color Edition’ is normal construction of words: The association of the terms ‘color’ and ‘edition’ was not unusual but a normal construction in light of the lexical rules of the English language and the mark did not therefore create an impression sufficiently far removed from that produced by the simple juxtaposition of the verbal elements of which it was composed to alter its meaning or scope.

 

IPPT20100219, EBA-EPO, Abbott Respiratory – Dosage regime

[G 2/08] Second medical indication need not be treatment of another disease. Dosage regimes: The claimed definition of the dosage regime must not only be verbally different from what was described in the state of the art but also reflect a different technical teaching. Swiss type claims no longer necessary. Freedom of medical practitioners to prescribe generics may be restricted: If deemed necessary, the freedom of medical practitioners may be protected by other means on the national level.

 

IPPT20100215, EBA-EPO, Medi-Physics - Method for treatment by surgery

[G 0001/07] Excluded from patentability: method for treatment by surgery: A claimed imaging method, in which, when carried out, maintaining the life and health of the subject is important and which comprises or encompasses an invasive step representing a substantial physical intervention on the body which requires professional medical expertise to be carried out and which entails a substantial health risk even when carried out with the required professional care and expertise, is excluded from patentability as a method for treatment of the human or animal body by surgery pursuant to Article 53(c) EPC. A claim comprising a step encompassing an embodiment of excluded method has to be amended. The exclusion from patentability under Article 53(c) EPC can be avoided by disclaiming the embodiment. No treatment by surgery merely because data obtained by method allow a decision on course of action for surgical intervention.


IPPT20100209, Court of Appeal, Eli Lilly v Human Genome Sciences

Members of TNF-ligand superfamily not “capable of industrial application”: No plausible (at least in the sense of reasonably credible) use for any member of the superfamily. Authority of decisions of the Technical Boards of Appeal: We follow any principle of law clearly laid down by them, only reserving the right to differ if we are sure that the commodore is steering the fleet on to the rocks.


IPPT20100121, CJEU, Audi v OHIM

Advertising slogan can be a mark: Distinctive character advertising message: In particular, where those marks are not merely an ordinary advertising message, but possess a certain originality or resonance, requiring at least some interpretation by the relevant public, or setting off a cognitive process in the minds of that public.

 

IPPT20100114, CJEU, Wettbewerbzentrale v Plus

Application of the Directive regarding unfair commercial practices: Scope ratione materiae which extends to any commercial practice directly connected with the promotion, sale or supply of a product to consumers. By establishing a prohibition in principle of practices which make the participation of consumers in a lottery or prize competition conditional on the purchase of goods or use of services, national legislation does not meet the requirements of Directive 2005/29.