2019

IPPT20190729, CJEU, Red Bull v EUIPO

Justified declaration that Red Bull trade marks consisting of a combination of the colours blue and silver per se are invalid: General Court correctly applied the principles stemming from the Heidelberger Bauchemie judgement (IPPT20040624), considering that the mark was not systematically arranged in such a way that the colours concerned are associated in a predetermined and uniform way.

 

IPPT20190729, CJEU, Pelham

Phonogram producer can prevent under Article 2(c) Copyright Directive another person from taking a sound sample, even if very short ("sampling"), of his or her work for another phonogram, unless that sample is included in the phonogram in a modified form unrecognisable to the ear. Concept of ‘copy’ (Article 9(1)(b) Rental Directive) must, according to its preambule, be interpreted consistently with the same concept as it is used in the Geneva Convention. Reproduction of all or a substantial part of a phonogram constitutes a 'copy'. Member State cannot, in its national law, lay down an exception or limitation, other than those provided for in Article 5, to the phonogram producer’s right provided for in Article 2(c) of that directive. Use of a sound sample taken from a phonogram (sampling) may amount to a "quotation", on the basis of Article 5(3)(d) Copyright Directive, provided that that use has the intention of entering into dialogue with the work from which the sample was taken. Concept of ‘quotations’ (Article 5(3)(d) Copyright Directive) does not apply when it is not possible to identify the work concerned by the quotation in question. Article 2(c) Copyright Directive constitutes full harmonisation.

 

IPPT20190729, CJEU, Funke Medien v Germany

Military status reports constituting purely informative documents, the content of which is essentially determined by the information which they contain and that those reports are thus entirely characterised by their technical function, are not protected by copyright: creativity has not been expressed in an original manner and there is no own intellectual creation. Article 5(3)(c) Copyright Directive does not constitute measures of full harmonisation of the scope of the relevant exceptions or limitations. Discretion in the implementation is circumscribed in several regards: discretion must be exercised within the limits imposed by EU law, discretion cannot be used so as to compromise the objectives of that directive, discretion also circumscribed by Article 5(5) of the directive, lastly, it is for the Member States to ensure a fair balance is struck between the various fundamental rights protected by the European Union legal order. Freedom of information and freedom of the press, enshrined in Article 11 of the Charter of Fundamental Rights of the European Union, are not capable of justifying exceptions or limitations to the copyright not provided for in the Directive. In striking the balance between the exclusive rights of the author and the rights of the users of protected subject matter, the latter of which derogate from the former, a national court must rely on an interpretation of those provisions which fully adheres to the fundamental rights enshrined in the Charter. Publication of military status reports may amount to ‘use of works ... in connection with ... reporting’ within Article 5(3)(c), second case, of Directive 2001/29: reports are presented in a structured form in conjunction with an introductory note, further links and a space for comments

 

IPPT20190704, CJEU, FTI Touristik v EUIPO

Name in normal script of figurative mark in the European Union Trade Marks Bulletin irrelevant for the purpose of determining the phonetic perception of the signs which should not be confused with their name in the Bulletin. Complaints directed against grounds of the judgment under appeal purely for the sake of completeness cannot in any event lead to the judgement’s being set aside.

 

IPPT20190612, CJEU, Patent- och registreringsverket v Hansson

National legislation which provides for a disclaimer whose effect would be to exclude an element of a complex trade mark, referred to in that disclaimer, from the global analysis of the relevant factors for showing the existence of a likelihood of confusion within the meaning of that provision, or to attribute to such an element, in advance and permanently, limited importance in that analysis is precluded by article 4(1)(b) of the Trade Mark Directive 2008

 

IPPT20190605, CJEU, Skype v IBPT

A VoIP service is an electronic communications service when the publisher is remunerated for the provision of this service and the provision is subject to an agreement between the providers of telecommunications services who are duly authorised to send and terminate calls to the PSTN.

 

IPPT20190515, CJEU, VM Vermogens Management

Argument that trade mark VERMÖGENSMANUFAKTUR (registered prior to IP-translator (IPPT20120619)) has been annulled only for services falling under the literal meaning of the headings of Classes 35 and 36 fails: the trade mark was protected in respect of all services in those classes and therefore annulled by the Board of Appeal in respect of all the services in Classes 35 and 36, statement of reasons GEU sufficient. Argument that the General Court held that the contested trade is devoid of distinctive character only because the expression Vermögensmanufaktur constitutes a laudatory reference is, is based on incorrect reading of the judgment under appeal. Arguments put forward by the appellant concerning the use of refused evidence by the Board of Appeal are inadmissible: arguments only concern repetition of arguments at first instance.

 

IPPT20190502, CJEU, Fundación Queso Manchego v IQC

A registered name may be evoked through the use of figurative signs. The use of figurative signs evoking the geographical area with which a designation of origin is associated may constitute evocation of that designation, including where such figurative signs are used by a producer established in that region, but whose products, similar or comparable to those protected by the designation of origin, are not covered by it. Whether there is an evocation of a registered name should be determined relying on the presumed reaction of consumers, and it must be assessed whether the link between the disputed elements and the registered name is sufficiently clear and direct. The concept of “the average consumer who is resonably observant and circumspect” must be understood as covering European consumers including consumers of the Member State in which the product giving rise to evocation of the protected name is made or with which that name is geographically associated and in which the product is mainly consumed.

 

IPPT20190411, CJEU, ÖKO-Test Verlag v Dr. Rudolf Liebe

Proprietor of an individual trade mark consisting of a quality label is not entitled by Article 9(1)(a) and (b) CTMR and Article 5(1)(a) and (b) of Directive 2008/95 to oppose the affixing, by a third party, of a sign identical with, or similar to, that mark to products that are neither identical with, nor similar to, the goods or services for which that mark is registered. For a trade mark consisting of a quality label to have a “reputation” it is required that a significant part of the relevant public knows that sign: not required that the public must be aware that the quality label has been registered as a trade mark. Proprietor of an individual trade mark with a reputation, consisting of a quality label, is entitled by Article 9(1)(c) and (b) CTMR and Article 5(2) of Directive 2008/95 to oppose the affixing by a third party of a sign identical with, or similar to, to products that are neither identical with, nor similar to, the goods or services for which that mark is registered, provided that it is established that, by that affixing, the third party takes unfair advantage of the mark concerned or causes detriment to that distinctive character or reputation and provided that, in that case, the third party has not established the existence of a ‘due cause’, within the meaning of those provisions, in support of such affixing.

 

IPPT20190410, CJEU, The Green Effort v EUIPO

The General Court did not err in law in deciding that the time limit for bringing an action against the contested decision had expired: article 4(4) of the decision concerning electronic communication with and by the Office must be interpreted as meaning that notification will be deemed to have taken place on the fifth calendar day following the day on which EUIPO placed the document in the user’s inbox, unless the actual date of notification can be accurately established as a different date within that period of time.

 

IPPT20190327, CJEU, Hartwall

Classification given by the applicant when registering a sign as a "colour mark" or "figurative mark" is a relevant factor amongst others to establish whether that sign can constitute a trade mark under Article 2 of the Trade Mark Directive 2008 and whether this mark has distinctive character under Article 3(1)(b). Trade mark authority is obliged to carry out a concrete and global assessment of the distinctive character of the trade mark concerned: authority cannot refuse registration of a sign as a trade mark on the sole ground that that sign has not acquired distinctive character through use in relation to the goods or services claimed, for a colour combination designated in the abstract and without contours, it is necessary to examine whether and to what extent the systematically arranged colour combination is capable of conferring inherent distinctive character on the sign in question. Registration as a colour mark of a sign that is represented as a colour drawing with defined contours, but is described as a colour mark should be refused due to an inconsistency in the application for registration.

 

IPPT20190321, CJEU, Abraxis Bioscience

Marketing authorisation relied on in support of an application for a SPC concerning a new formulation of an old active ingredient, cannot be regarded as being the first marketing authorisation for the product concerned as a medicinal product in the case where that active ingredient has already been the subject of a marketing authorisation as an active ingredient.

 

IPPT20190314, CJEU, Textilis v Svenskt Tenn

Article 7(1)(e)(iii) EUTMR (Regulation 207/2009 as amended by Regulation 2015/2424) is not applicable to trade marks registered before the entry into force of the amendment to that Regulation (23 March 2016). Sign consisting of two-dimensional decorative motiffs affixed to goods such as fabrics or paper shall does not "consisting exclusively of the shape " within the meaning of Article 7(1)(e)(iii) CTMR (Regulation 207/2009 prior to its amendment by Regulation 2015/2524). Although, in the main proceedings, the sign under consideration represents shapes which are formed by the external outline of drawings representing, in a stylised manner, parts of geographical maps, the fact remains that, apart from those shapes, that sign contains decorative elements which are situated both inside and outside those outlines.

 

IPPT20190228, CJEU, Groupe Lea Nature v EUIPO
Likelihood of confusion cannot be subject to a condition that the overall impression produced by the composite sign be dominated by the part of it which is represented by the earlier mark: General Court therefore not obliged to find that the element ‘so’ was dominant in order to find that the signs at issue were similar.

 

IPPT20190214, CJEU, De Staat v Warner-Lambert 

In a marketing authorisation procedure, a communication of the package leaflet or summary of the product characteristics of a generic medicinal product, which does not include indications or dosage forms which were still covered by patent law at the time that medicinal product was placed on the market ("carve out"), constitutes a request to limit the scope of the marketing authorisation of the generic medicinal product in question

 

IPPT20190131, CJEU, Pandalis v EUIPO

Appeal against General Court finding that “Cystus” has not been put to genuine use despite being used on the packaging of the goods concerned unfounded: the condition of genuine is not fulfilled where the mark affixed to an item does not contribute to creating an outlet for that item or to distinguishing the item from the goods of other undertakings, the General Court stated that in view of its context the use of the term ‘cystus’ on the packaging of the products would be perceived as descriptive of the main ingredient of those goods “Cistus” and not as identifying their commercial origin, by stating this, the General Court did not find that the mark at issue was descriptive.

 

IPPT20190123, CJEU, Klement v EUIPO

General Court implicitly held that trade mark in question has a high degree of distinctiveness solely because of its unusual shape, even though that shape is to some extent functional. Trade mark in question has been put to genuine use even though the word mark “Bullerjan” is affixed to the goods. The fact that the word mark “Bullerjan” can facilitate the commercial origin of the respective furnaces does not conflict with the fact that the word mark does not alter the distinctive character of the three-dimensional trade mark consisting of the shape of the goods. In the event that the court of first instance finds that the mark in question departs significantly from the norm or customs of the sector, it is not up to the trade mark proprietor to provide further evidence that the shape of the trade mark is not customary in the sector concerned, but to the person who claims that the trade mark has not been put to genuine use.

 

IPPT20190116, CJEU, Stock Polska v EUIPO

General Court did not fail to appraise the figurative elements of the Lubelska mark for which registration was applied. existence of a likelihood of confusion between LUBELSKA and LUBECA  to the requisite legal standard: General Court implicitly ruled that it considered the figurative elements of the mark applied for were not negligible and the word element was not dominant.