Tag: CJEU

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Putting Position Marks Front and Centre: CJEU Considers Assessment of Position Marks for Services
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Copyright protection for Brompton’s folding bicycle? CJEU gives green light to the possibility across Europe
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After the CJEU’s decision now there is a final High Court judgment in the Sky v SkyKick case
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COVID-19: EUIPO extends all office deadlines; CJEU restricts operations but time limits unchanged
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We have a decision in the Sky v SkyKick case… and the long-awaited CJEU’s decision is good news for brand owners!
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Sky v Skykick AG – is this the end of a claim for “computer software?”
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A figurative mark? A position mark? Or just a trade mark?
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CJEU provides some clarity on when a design is ‘solely dictated by its technical function’
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When recording also means communication to the public – interaction between copyright and cloud-based video recording services
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European Court Considers Whether Hyperlinking to Unauthorised Content on Third-party Websites Infringes Copyright

Putting Position Marks Front and Centre: CJEU Considers Assessment of Position Marks for Services

In a recent Court of Justice of the European Union (CJEU) ruling, based on a referral from the Stockholm Court of Appeal, the CJEU considered whether the distinctiveness of a sign that is to be applied to specific services should be assessed with regard to what is customary in the relevant sector. A full copy of the decision can be found here.

The Court clarified that, in the context of trade marks for services, the assessment of a sign’s distinctiveness should not always involve an assessment of norms and/or customs of the sector.

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Copyright protection for Brompton’s folding bicycle? CJEU gives green light to the possibility across Europe

On 11 June 2020, the Court of Justice of the European Union (CJEU) handed down its decision in the referral from the Belgium Companies Court (Tribunal de l’entreprise de Liège) arising from copyright infringement proceedings by Brompton Bicycle Ltd (Brompton) against a Korean company Get2Get Chedech (Get2Get) relating to its folding bike.

The decision is good news for designers and creative businesses as it lays a foundation for new opportunities for copyright protection and enforcement in Europe. This evolving area of law now requires a low threshold for protection, with a suggestion from the CJEU that minor creative choices in products will be sufficient for a finding of copyright protection.

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After the CJEU’s decision now there is a final High Court judgment in the Sky v SkyKick case

After the CJEU’s ruling earlier this year (as discussed here), the Sky v Skykick case has now returned to the English High Court and Lord Justice Arnold on 29 April 2020 issued a final judgment in the case (see full text of the judgment here).

Although Sky’s trade marks were found to be partially invalid on the ground that they were applied for in bad faith, Sky was still ultimately successful in establishing infringement.

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COVID-19: EUIPO extends all office deadlines; CJEU restricts operations but time limits unchanged

With the global impact of the COVID-19 pandemic being seen in all facets of our lives, European IP registries are also seeking to manage these exceptional circumstances.

On Monday 16 March 2020, the Executive Director of the EUIPO issued a decision extending all time limits for EU trade marks and designs expiring between 9 March 2020 and 30 April 2020, that affect all parties before the Office, to 1 May 2020. Similarly, the EPO has announced that all deadlines for patent matters are extended until 17 April 2020.

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We have a decision in the Sky v SkyKick case… and the long-awaited CJEU’s decision is good news for brand owners!

On 29 January 2020 the Court of Justice of the European Union (CJEU) handed its decision in the referral from the English High Court in the Sky v SkyKick case. We have previously covered this case and its importance for EU and UK trade mark law (including with our summary of the opinion issued by Advocate General Tanchev, which can be seen here).

The CJEU’s ruling provides good news for trade mark owners as it largely maintains the status quo for EU and UK trade mark law, departing from the AG’s Opinion in a number of important ways.

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Sky v Skykick AG – is this the end of a claim for “computer software?”

On 16 October 2019, Advocate General Tanchev of the CJEU has issued his opinion in Sky v SkyKick one of the most intriguing trade mark cases at the moment which will likely have a significant impact on EU trade mark law. Crucially the AG has advised that:

  1. “registration of a trade mark for ‘computer software’ is unjustified and contrary to the public interest” because it confers on the proprietor a “monopoly of immense breadth which cannot be justified”, and it lacks sufficient clarity and precision; and
  2. trade mark registrations made with no intention to use, in relation to the specified goods and services, may constitute bad faith.
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A figurative mark? A position mark? Or just a trade mark?

The Court of Justice of the European Union (CJEU) recently confirmed that when assessing the actual use of a mark and the scope of protection afforded by a trade mark, the defining factor is the way in which it is perceived, and it is irrelevant that it is classified as a figurative or a position mark. In the CJEU’s decision in ECLI:EU:C:2019:471, the CJEU rejected German shoemaker Deichmann’s appeal to have Spanish competitor Munich SL’s trade mark revoked. The case revolves around the registered mark below, depicting a solid line cross on the side of a dotted outline of a shoe.

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CJEU provides some clarity on when a design is ‘solely dictated by its technical function’

The Court of Justice of the European Union (CJEU) recently confirmed that the “no-aesthetic-consideration” test is the preferable approach when deciding whether a design is “solely dictated by its technical function”.  As a result, if aesthetic considerations are completely irrelevant the design should not be registered.  However, this does not mean that the legislation requires a design to have an aesthetical merit in order to be registered as a Community Design.

Last month, the CJEU published their long-waited decision on the request for a preliminary ruling raised by the Oberlandegericht Düsseldorf (the “German Court”) back in 2016.

The CJEU has provided some clarity on the interpretation of Article 8(1) of the Community Design Regulation (CDR) and how to determine if a product’s features are “solely dictated by its technical function”. The CJEU took the chance to stress, once again, that the determination “must be interpreted in a uniform manner in all Member States”, which strongly reiterates the EU’s objective for cohesive legal application.

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When recording also means communication to the public – interaction between copyright and cloud-based video recording services

On 29 November 2017, the Court of Justice of the EU (CJEU) released its judgment in response to a reference from an Italian court relating to cloud recording and computing services provided by VCAST Limited (VCAST). The services enabled VCAST’s customers to select live broadcasts of television programmes that VCAST then remotely, through its own systems, recorded and made available in a cloud data storage space. The Italian court asked whether VCAST could provide this service without the permission from the owner of the copyright over the programme, with a specific query as to the application of the private copying exception provided in Article 5(2)(b) of the Information Society Directive (2001/29/EC) (InfoSoc Directive).

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European Court Considers Whether Hyperlinking to Unauthorised Content on Third-party Websites Infringes Copyright

By Alessandra Feller and Alessia Castelli

Following the provision of a recent Advocate General opinion, the Court of Justice of the European Union (CJEU) is expected to give further guidance on hyperlinking soon.

A dispute arose in the Netherlands between Sanoma Media Netherlands BV (and others) and GS Media in relation to the posting of website hyperlinks to third party sites which contained photographs the communication of which was not authorised by Sanoma and the other right holders.

Specifically, the Dutch Supreme Court has referred certain questions to the CJEU, asking whether

  1. hyperlinks to a freely accessible third party website which displays material without the consent of the copyright owner should be considered a “communication to the public” within the meaning of Art 3(1) of the Directive no. 2001/29 (“InfoSoc Directive”).
  2. In such circumstances, whether the following factors are relevant:
    • the awareness of the hyperlinker of the failure of authorisation from the copyright owner, and/or
    • the facilitation role played by the hyperlink on the accessibility of the material.Such conclusions were based on the grounds that the photographs were “freely accessible” to the general internet public on third party websites.

The CJEU decision on this case is much awaited, and it will be complementing the argument introduced by the Svensson case on hyperlinking. The decision in Svensson left some ambiguity as to whether it made a difference that works had been published on a site linked to without the copyright owner’s consent.

On April 7, 2016, Advocate General Wathelet  released an opinion that hyperlinking to unauthorised content does not constitute an act of communication to the public under Article 3(1) of the InfoSoc Directive, because the intervention of the hyper linker is not essential to the making available of the copyright works to users. He also held that it is irrelevant whether the hyperlinker is aware that the linked content is unauthorised. In the AG’s view, the only criterion that mattered is whether the linked website is freely accessible or whether the hyperlink is used to circumvent a restriction put in place in order to limit access to a protected work. Only in the latter case would a hyperlink constitute a communication to the public.

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