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IPPT20121219, CJEU, Elaris and Brookfield v Schniga

Legality decisions: general Court can review legality decisions CPVO by examining whether characterisation of facts was flawed. Descretions CPVO: CPVO has decretion to make separate request for plant material  to be examined and for documentary evidence relating to it and to make new request plant material after imprecise initial request; principles of sound administration and effectiveness of proceedings.


IEPT20121219, ECJ, Leno v Hagelkruis

Genuine use in the Community: territorial borders of Member States should be disregarded


IPPT20121206, CJEU, AstraZeneca v European Commission

Development product market and substitution of importance. Price comparison of H2-blockers and PPI’s of identical treatment period irrelevant in case of absence of competitive constraint due to therapeutic superiority PPI’s. First abuse: knowingly trying to mislead patent offices and judicial authorities while obtaining Supplementary Protection Certificates (“SPC’s”). Specific responsibility undertaking in dominant position. Anti-competitive effect caused by unlawful SPC’s. Second abuse: deregistration of Marketing Authorisation (“MA”) of original medicinal product to hinder registrations of generic medicinal products and parallel imports. Deregistration MA after period of exclusivity results pharmacological, toxicological and clinical trials to hinder generic products and parallel imports does not come within scope of competition on the merits to benefit consumers. Possibility of deregistering MA is not property right: restriction does not constitute expropriation or obligation to grant a licence.


IPPT20121115, CJEU, RWZ v STV
Establishing and scope of obligation supplier of processing services to provide information on protected varieties.Request for information to supplier or processing services does not need to contain evidence of obligation of farmer to comply.


IPPT20121025, CJEU, Rintisch v Eder

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


IPPT20121018, CJEU, Purely Creative
Unfair commercial practice when giving the false impression that consumer has already won prize, while consumer has to incur (minimal) costs first to claim the prize


IPPT20121018, CJEU, Neuman v Baena Grupo

Community design not invalid based on older Community trademark: difference in facial expression is a fundamental characteristic that is remembered by informed user


IPPT20121018, CJEU, Jager & Polacek

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


IPPT20121018, CJEU, Football Dataco v Sportradar
‘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 evidence from which may be concluded that the act discloses an intention on the part of the person performing the act to target members of the public in Member State B


IPPT20120906, CJEU, Kreussler v Sunstar
Pharmacological action: interaction between substance and cellular constituent within user’s body is sufficient; interaction on molecular level not necessary. Interpretation of ‘pharmacological action’ in Pharma Directive on the basis of guidance document


IPPT20120906, CJEU, Deutsches Weintor v Land Rheinland-Pfalz

‘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


IPPT20120719, CJEU, Pie Optiek v Bureau Gevers

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


IPPT20120719, CJEU, Neurim v Comptroller-General of Patents

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 products, second MA required full application, or product was within different patent which belonged to other proprietor


IPPT20120712, CJEU, Solvay v Honeywell

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 regarding interim measures


IPPT20120712, CJEU, Hit Larix v Bundesminister

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


IPPT20120712, CJEU, Compass-Datenbank v Republik Osterreich
No economic activity public authority by acting on statutory obligations; no undertaking (abuse of dominant position)


IPPT20120705, CJEU, Geistbeck v Saatgut

“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


IPPT20120703, CJEU, UsedSoft v Oracle

Exhaustion of the distribution right with regard to a copy of a computer program that has been licensed for an unlimited period in return for payment of a fee. Second and subsequent acquirer of a copy of a computer program for which the distribution right is exhausted is a lawful acquirer of copy of computer program


IPPT20120621, CJEU, Donner

Copyright: Distribution 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 Member State where works are not or no longer protected by copyright


IPPT20120619, CJEU, CIPA v Registrar

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 objective need seeking national body, inherent in outcome of case pending before it.


IPPT20120524, CJEU, Lindt v OHIM

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


IPPT20120524, CJEU, Formula One v OHIM
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 national trade mark is presumed


IPPT20120510, CJEU, L’Oréal v OHIM
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 United Kingdom


IPPT20120502, CJEU, SAS v World Programming

Functionality of computer program, programming language, and format of data files not a form of expression of that program; not protected by copyright. Licensee allowed to use and to analyse he program to determine the ideas and principles of program. Reproduction in computer program or user manual of elements, protected by copyright, from another program, may constitute infringement. Individual keywords, syntax, commands, options, defaults, etc., not an intellectual creation; the choice, sequence and combination of words, figures or mathematical concepts however might be.


IPPT20120426, CJEU, Deichmann v OHIM

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 distinctive character  from the applied trademark to other uses than those considered to be the most likely


IPPT20120426, CJEU, TV2 Denmark v NCB

Copyright Directive makes aspects of Berne Convention part of European Union law. The expression “by means of their own facilities” must be interpreted within the framework of European Union law. By means of their own facilities also includes third parties acting on behalf of or under the responsibility of broadcasting organisation. Broadcasting organisation is required to pay compensation for any adverse effects of the acts and omissions of such third party


IPPT20120419, CJEU, Wintersteiger v Products 4U

Actions relating to trade mark infringement by use of Adwords may be brought before courts of Member States in which the trade mark is registered or of the place of establishment of the advertiser


IPPT20120419, CJEU, Bonnier Audio v ePhone

Internet service provider can be ordered to give personal information of alleged infringer to copyright holder


IPPT20120322, CJEU, Genesis v Boys Toys 

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.


IPPT20120320, USSC, Mayo v Prometheus
Unpatentable process claims: We find that the process claims at issue here do not satisfy these conditions. In particular, the steps in the claimed processes (apart from the natural laws themselves) involve well-understood, routine, conventional activity previously engaged in by researchers in the field. At the same time, upholding the patents would risk disproportionately tying up the use of the underlying natural laws, inhibiting their use in the making of further discoveries.The process that each claim recites tells doctors interested in the subject about the correlations that the researchers discovered. In doing so, it recites an “administering” step, a “determining” step, and a “wherein” step. These additional steps are not themselves natural laws but neither are they sufficient to transform the nature of the claim.



IPPT20120315, CJEU, Securvita v Öko-Invest

Combination of descriptive words and abbreviations is devoid of distinctive character


IPPT20120315, CJEU, SCF v Del Corso

“Communication to the public” does not cover broadcasting, free of charge, of phonograms within private dental practices, enjoyed by patients without any active choice on their part. According to European law, individuals may not rely directly on TRIPS, WPPT and the Rome Convention. Concept of “communication to the public” must be interpreted in the light of TRIPS, WPPT and the Rome Convention.


IPPT20120315, CJEU, PPI v Ireland

Hotel operator (i) which provides televisions and/or radios is a user making a communication to the public of a phonogram which may be played in a broadcast and is obliged to pay equitable remuneration, and (ii) which provides other apparatus and phonograms which may be played on or heard from such apparatus is also a user making a communication to the public of a phonogram and is obliged to pay equitable remuneration. Hotel operator does not fall under the private use exception


IPPT20120312, CJEU, Perenicova v SOS financ

A possible advantage for one of the parties is no reason to annul a contract as a whole when it contains one or more unfair terms


IPPT20120301, CJEU, Football Dataco v Yahoo

Originality: making free and creative choices and thus stamp personal touch. Copyright on database: selection or arrangement of the data which amounts to an original expression of the creative freedom of its author; not mere intellectual effort, labour an skill. Copyright on database: Database Directive harmonises copyright protection of databases


IPPT20120216, CJEU, SABAM v Netlog

Injunction against hosting service provider to install contested filtering system precluded: that Directives 2000/31, 2001/29 and 2004/48, read together and construed in the light of the re-quirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction made against a hosting service provider which requires it to install the con-tested filtering system.


IPPT20120216, CJEU, Celaya v Proyectos

Community design infringement: later registered Community design can infringe earlier Community design. Intention and conduct third party irrelevant for infringement.


IPPT20120209, CJEU, Luksan v van der Let

Rights to exploit a cinematographic work must by operation of law be vested in the principal director. Rebuttable presumption of transfer of rights to exploit the cinematographic work allowed. Principal director must be directly entitled to the right to fair compensation for private copying. Presumption of transfer of right to fair compensation for private copying not allowed.


IPPT20120207, ECHR, Von Hannover v Germany

Characterisation of Prince Rainier’s illness as an event of contemporary society not unreasonable.


IPPT20120207, ECHR, Axel Springer v Germany

Balancing interest in publishing the information about arrest for cocaine possesion against TV actor's right to respect for his private life; under the circumstances no need to preserve anonymity TV actor; no bad faith publisher. Content, form and consequences of the impugned articles do constitute a ground for banning them.


IPPT20120119, CJEU, OHIM v Nike International

Nike ought to have been granted an opportunity to prove the transfer of the earlier right R10 on which it relied in order to show that it had locus standi


IPPT20120117, CJEU, Infopaq v DDF

Acts of temporary reproduction allowed during data capture process. During  a data capture process, those acts must constitute an integral and essential part of a technological process, notwithstanding they initiate and terminate that process and involve human intervention