2014

IPPT20141218, CJEU, International Stem Cell Corporation v Patent Office
An unfertilized human ovum that does not have the inherent capacity of developing into a human being, does not constitute a ‘human embryo’ according to Article 6(2)(c) of the Biotechnical Inventions Directive

IEPT20141120, CJEU, Intra-Presse v BHIM
Likelihood of confusion: the General Court should have determined whether the low degree of similarity  was nevertheless sufficient, on account of the presence of other relevant assessment factors (such  as the reputation or recognition enjoyed by the earlier mark), for the public to make a link between  those two marks

 

IPPT20141021, CJEU, BestWater

Embedding a copyright protected work on a website through framing technology cannot be considered as ‘communication to the public’ according Art. 3(1) 2001/29/EC, as long as the copyright protected work is not communicated to a new public, nor communicated by technical means that differ from the technical means of the initial communication.

 

IPPT20140911, CJEU, TU Darmstadt v Eugen Ulmer

Copyright Law: The concept 'purchase of licensing terms'in Article 5(3)(n) Copyright Directive includes that the concept of 'purchase or licensing terms' provided for in Article 5(3)(n) of Directive 2001/29 must be understood as requiring that the rightholder and an establishment, such as a publicly accessible library, referred to in that provision must have concluded a licensing agreement in respect of the work in question that sets out the conditions in which that establishment may use that work.

 

IPPT20140904, CJEU, European Commission v Council of European Union

Annulment decision of the Council of the EU on the participation of both EU and Member States to negotiate on the Convention Council of Europe about the protection of neighbouring rights from broadcasters. Exclusive power of the Union (Article 3(2) TFEU): concerns a large part of the area covered by common rules of the Union and these negotiations may affect the common rules of the Union or change the schope of it. El 3(a) TFEU): right to rebroadcast, right of communcation to the public, the protection of pre-broadcast, program-carrying signals and the respect of the related rights of broadcasting organisations.

 

IPPT20140903, CJEU, Deckmyn en Vrijheidsfonds v Vandersteen
Parody: must be regarded as an autonomous concept of EU law and must strike a fair balance between the interests and rights of the holder of the creator of the work and the freedom of expression

 

IPPT20140710, CJEU, Apple v Patent und Markenamt
Layout of a store: presentation which depicts the layout of a store may constitute a trade mark, even if it does not contain any indication of the sizes and proportions of the presentation. Registration: also legitimate for services that do not form an integral part of the offer for sale of those goods.  

 

IPPT20140710, CJEU, Netto Marken-Discount v Patent Markemant
Services: bringing together services so that the consumer can conveniently compare and purchase them may come within the concept of ‘services’ ex art. 2 Trade Marks Directive. Formulation of trade mark: formulation of application for service of the bringing together must be clear and precise so as to allow the competent authorities and other economic operators to know which services the applicant intends to bring together.

 

IPPT20140619, CJEU, Oberbank en Santander Consumer Bank v DSGV
Distinctive character through integration of contourless colour marks cannot be determined solely based on consumer survey with a degree of recognition of at least 70%. Invalidity: trade mark kan be declared invalid when proprietor fails to show that distinctive character was acquired prior to application for registration.

 

IPPT20140619, CJEU, Bayer v Patent und Markenamt

Safener must be interpreted as ‘product’ and ‘active substances’ in ABC-Vo if the substance has a toxic, phytotoxic or plant protection action of its own.

 

IPPT20140619, USSC, Alice v CLS Bank International

Patent-ineligible abstract ideas: implicit exception for ‘“[l]aws of nature, natural phenomena, and abstract ideas.’ ” In applying the §101 exception, this Court must distinguish patents that claim the “‘buildin[g] block[s]’” of human ingenuity, which are ineligible for patent protection, from those that integrate the building blocks into something more. Using this framework, the Court must first determine whether the claims at issue are directed to a patent-ineligible concept. If so, the Court then asks whether the claim’s elements, considered both individually and “as an ordered combination,” “transform the nature of the claim” into a patent-eligible application. The claims at issue are directed to a patent-ineligible concept: the abstract idea of intermediated settlement. 

 

IPPT20140619, CJEU, Karen Millen Fashions v Dunnes Stores
Individual character:  must not be evaluated on the basis of a combination of isolated features from a number of earlier designs, but by one or more individually considered earlier designs and is not required to be proven by the right holder. 

 

IPPT20140605, CJEU, PRCA v NLA
Acts of reproduction: when viewing website in terms of on-screen copies and cached copies of a temporary nature and when viewing website is integral and essential part of technological process. 

 

IPPT20140515, HCUK, Actavis v Eli Lilly
Priority date is relevant date to asses common general knowledge for the purpose of infringement. Claim construction: claim must be construed in the same manner for the purpose of considering both infringement and validity. To put it bluntly, one cannot use equivalents to extend the scope of the claim just for infringement and not for validity. Still less can one use equivalents to extend protection outside the claims for the purposes of infringement, but confine attention to the claims when considering validity. Three main classes of equivalence: (i) unfortunate drafting, (ii) technology having moved on and (iii) regrettable decision taken during prosecution. In the third class of case, there is no reason why the law should be sympathetic to the patentee. Prosecution history: courts should be cautious before relying upon prosecution history as an aid to construction, but when the prosecution history shows clearly why the claims are expressed in the manner in which they are to be found in the granted patent and not in some broader manner there is no good reason why the court should shut its eyes to the story told by the prosecution file.

 

IPPT20140513, CJEU, Google Spain v AEPD

Personal data: Processing personal data by operator of search engine in searchresults. The operator of this search engine is responsible for the processing: he determines the purposes and means of that activity. Processing of the personal data of a search engine is carried out in the context of activities of the establishment on the territory of the Member State, when the establishment was founded for the purpose of promotion and sale of advertising space offered by the search engine. The operator of a search engine is under certain conditions obliged to remove links to webpages published by third parties, even if the publication on those the webpages is lawful. Right to be forgotten, when processing by the search engine is currently incompatible with the Directive, unless special reasons resist against this.

IPPT20140508, CJEU, Salame Felino
Council Regulation on the protection of geographical indications and designations of agricultural products and foodstuffs does not preclude additional national protection regulations, if these regulations do not undermine the objectives pursued by the principles of Regulation No 2081/92 and the principle of free movement of goods.
 

IPPT20140508, CJEU, Assica
Council Regulation on the protection of geographical indications and designations of agricultural products and foodstuffs: does not preclude additional national protection regulations, if these regulations do not undermine the objectives pursued by the principles of Regulation No 2081/92 and the principle of free movement of goods 

 

IPPT20140410, CJEU, ACI v Thuiskopie
Private copy exception: national legislation that makes no distinction between lawful private copies from unlawful sources and lawful sources conflict with objectives of Copyright Directive

 

IPPT20140409, CJEU, Sintax Trading

Customs authorities:
- may initiate proceedings to determine whether there has been an infringement of an intellectual property right under national law.

- may determine whether there has been an infringement of an intellectual property right, if the relevant decisions are subject to appeal

 

IPPT20140408, CJEU, Digital Rights v Ireland

Data Retention Directive invalid: it has exceeded the limits imposed by compliance with the principle of proportionality 

 

IPPT20140403, CJEU, Hi Hotel v Spoering

Jurisdiction: a court of Member State within which damage is caused, where supposed perpetrator did not act, has jurisdiction only to rule on damage cause within territory of Member State to which it belongs

 

IPPT20140327, CJEU, UPC Telekabel v Constantin Film
ISP's: a person who makes protected subject-matter available to the public on a website without the agreement of the rightholder, is using the services of the internet service provider of the persons accessing that subject-matter 

 

IPPT20140313, CJEU, Posteshop

Misleading advertising: misleading advertising and unlawful comparative advertising are two independent infringements. Divergence between languages: where there is a divergence between various language versions of a European Union text, the provisions in question must be interpreted by reference to the general scheme and the purpose of the rules of which they form part.

 

IPPT20140306, CJEU, Pi-Design v OHIM

When examining whether a sign consists exclusively of the shape of goods which is necessary to obtain a technical result, the competent authority may take into account the actual use made of the trade mark following its registration.

 

IPPT20140306, CJEU, Backaldrin v Pfahnl

Becoming a common name for end users of that product can be sufficient ground for revocation of a trade mark. The fact that the proprietor of a trade mark does not encourage sellers to make more use of a trade mark in marketing a product may be classified as ‘inactivity’ by the proprietor.

 

IPPT20140227, CJEU, OSA

Communication to the public: communication to the public by providing access to works via television and radio devices in rooms of spa establishment

 

IPPT20140213, CJEU, Gautzsch v Joseph Duna

Distribution of images of a design to traders operating in the involved sector in the Union can be sufficient to be known in the course of business to the circles specialized in the sector concerned. Burden of proving: holder of protected design must bear the burden of proving that the contested use results from copying that design; national law may counter difficulties in production of evidence

 

IPPT20140213, CJEU, Svensson v Retriever
Provision of clickable links is an act of communication: making it available to indeterminate and fairly large number of recipients. No act of communication to new public when clickable links provide direct access to original site; users deemed to be part of the public taken into account during initial communication. 
 

IPPT20140213, CJEU, Merck Canada
Tribunal Arbitral necessário must be considered to be a court or tribunal for the purposes of article 267 TFEU. SPC: validity of SPC is no longer than 15 years from the first MA in the European Union.

 

IPPT20140213, CJEU, Hungary v European Commission
Actionable measures: any measures adopted by the institutions of the European Union which are intended to have binding legal effects, are actionable measures (article 263 TFEU). Automatic registration: automatic registration  by European Commission of already protected wine names in E-Bacchusdatabase does not establish binding legal effects and thus is not subject to appeal.

 

IPPT20140206, CJEU, Blomqvist v Rolex
Council Regulation 1383/2003: affords protection over goods sold through an online sales website in a non-member country from the moment that the goods enter the territory of the Member State, irrespective of whether the goods were subject of an offer for sale or advertising targeting consumers of that State, prior to the sale.

 

IPPT20140123, CJEU, OHIM v WeserGold
Likelihood of confusion: if it is determined that marks are not similar and the likelihood of confusion is therefore excluded, increased distinctiveness as a result of the use of earlier marks cannot not offset the lack of similarity between the marks at issue. 

 

IPPT20142301, CJEU, Nintendo v PC Box

Videogame: complex matter comprised of computer program and graphic and sound elements. Legal protection against circumventing technological measures: only applies in the light of protecting the rightholder against acts which require his authorization. A “technological measure” can also include technological measures portable equipment or consoles intended to ensure access to those games and their use. National court should determine efficacy of other measures or measures which are not installed in consoles, taking into account proportionality, effectivity and actual use.