General
IPO website
IPO press release, 28 November 2008;IPO professional homepage.
Business attitudes to IP report
Service by facebook: article
File sharing litigation
Davenport Lyons press release:
TopWare Interactive High Court cases reported by the IPKat here and here.
Copyright
Stim
Case C 52/07, Kanal 5 Ltd and TV 4 AB v Föreningen Svenska Tonsättares Internationella Musikbyrå
The Marknadsdomstolen stayed the proceedings and to referred the following questions to the Court for a preliminary ruling:
‘(1) Is Article 82 EC to be interpreted as meaning that a practice constitutes abuse of a dominant position where a copyright management organisation which has a de facto monopoly position in a Member State applies to or imposes in respect of commercial television channels a remuneration model for the right to make available music in television broadcasts directed at the general public which involves the remuneration being calculated as a proportion of the television channels’ revenue from such television broadcasts by those channels?
(2) Is Article 82 EC to be interpreted as meaning that a practice constitutes abuse of a dominant position where a copyright management organisation which has a de facto monopoly position in a Member State applies to or imposes in respect of commercial television channels a remuneration model for the right to make available music in television broadcasts directed at the general public which involves the remuneration being calculated as a proportion of the television channels’ revenue from such television broadcasts by those channels, where there is no clear link between the revenue and what the copyright management organisation makes available, that is, authorisation to perform copyright-protected music, as is often the case with, for example, news and sports broadcasts and where revenue increases as a result of development of programme charts, investments in technology and customised solutions?
(3) Is the answer to Question A or B affected by the fact that it is possible to identify and quantify both the music performed and viewing?
(4) Is the answer to Question A or B affected by the fact that the remuneration model (revenue model) is not applied in a similar manner in respect of a public service company?’
The Court of Justice gave its answer:
"1. Article 82 EC must be interpreted as meaning that a copyright management organisation with a dominant position on a substantial part of the common market does not abuse that position where, with respect to remuneration paid for the television broadcast of musical works protected by copyright, it applies to commercial television channels a remuneration model according to which the amount of the royalties corresponds partly to the revenue of those channels, provided that that part is proportionate overall to the quantity of musical works protected by copyright actually broadcast or likely to be broadcast, unless another method enables the use of those works and the audience to be identified more precisely without however resulting in a disproportionate increase in the costs incurred for the management of contracts and the supervision of the use of those works.
2. Article 82 EC must be interpreted as meaning that, by calculating the royalties with respect to remuneration paid for the broadcast of musical works protected by copyright in a different manner according to whether the companies concerned are commercial companies or public service undertakings, a copyright management organisation is likely to exploit in an abusive manner its dominant position within the meaning of that article if it applies with respect to those companies dissimilar conditions to equivalent services and if it places them as a result at a competitive disadvantage, unless such a practice may be objectively justified".
Copyright “debate”
The Intellectual Property Office issues paper
the challenges posed when seeking to recognise creative input - the IPO asks whether the current system strikes the correct balance between commercial certainty and the rights of creators;
the issues related to accessing work - the IPO questions whether the current system is too complex (for example, in relation to the copyright exemptions) and whether the existing enforcement system works in the digital age;
the problems encountered when seeking to incentivise investment and creativity among creative artists and rights-holders in relation to both physical works and online exploitation; and
the difficulties in authenticating and protecting works, particularly in the digital environment.
Copyright term extension
Andrew Gowers’s view: Copyright Extension is Out of Tune with Reality
Prof Amanda Harcourt’s article “Are performers a special case?”
Mobile and iPhone locking v. the DRM (Digital Millennium Copyright Act)
EFF press release and documents.
Trading standards officers use new powers to investigate software licence compliance
FAST press release, 11 December 2008
Government seeks further derogation for droit de suite
IPO press release and official letter.
Orphan works
Proposals from Prof Adrian Sterling
Designs
Amendments to Hague Agreement
WIPO information notice No. 18/2008, 1 December 2008.
Patents
ratiopharm & Sandoz v Napp Pharmaceuticals
Prospective costs order
US CA Fed Cir ruling in Qualcomm Inc v Broadcom Corp on IP rights and industry standards
Patentability of Software: new IPO practice note
IPO publishes results of fast-track processing consultation
IPO Response document, 1 December 2008.
Trade marks
Case C 276/05, The Wellcome Foundation Ltd v Paranova Pharmazeutika Handels GmbH.
The Austrian court referred the following questions to the Court for a preliminary ruling:
"1. (a) Are Article 7 of … Directive 89/104 … and the case-law of the Court … which has been pronounced on it to be interpreted as meaning that proof that reliance on the trade mark would contribute to an artificial partitioning of the market must be furnished not only as regards the repackaging itself, but also as regards the presentation of the new packaging? If the answer to that question is in the negative:
(b) Is the presentation of the new packaging to be measured against the principle of minimum intervention or (only) against whether it is such as to damage the reputation of the trade mark and its proprietor?
2. Are Article 7 of Directive [89/104] and the case-law of the Court … which has been pronounced on it to be interpreted as meaning that the parallel importer fulfils his duty of notification only if he informs the proprietor of the trade mark also of the State of export and the precise reasoning for the repackaging?"
The European Court of Justice ruled as follows:
"1. Article 7(2) of Council Directive 89/104 ... is to be interpreted as meaning that, where it is established that repackaging of the pharmaceutical product is necessary for further marketing in the Member State of importation, the presentation of the packaging should be assessed only against the condition that it should not be such as to be liable to damage the reputation of the trade mark or that of its proprietor.
2. Article 7(2) of Directive 89/104 ... is to be interpreted as meaning that it is for the parallel importer to furnish to the proprietor of the trade mark the information which is necessary and sufficient to enable the latter to determine whether the repackaging of the product under that trade mark is necessary in order to market it in the Member State of importation".
Case C-16/06 P Les Éditions Albert René Sàrl v Office for Harmonisation in the Internal Market, Orange A/S.
Joined Cases T-225/06, T-255/06, T-257/06 and T-309/06 Budějovický Budvar, národní podnik v Office for Harmonisation in the Internal Market, Anheuser-Busch, Inc.
Hotel Cipriani SRL and others v Cipriani (Grosvenor Street) Ltd and others [2008] EWHC 3032 (Ch).
Case C 442/07, Verein Radetzky-Orden v Bundesvereinigung Kameradschaft ‘Feldmarschall Radetzky’: ECJ rules on genuine use of trade mark by not-for-profit organisation
C 59/08 Copad SA v Christian Dior couture SA e.a.
The court referred the following questions:
"1. Must Article 8(2) of First Council Directive No 89/104 ... to approximate the laws of the Member States relating to trade marks be interpreted as meaning that the proprietor of a trade mark can invoke the rights conferred by that trade mark against a licensee who contravenes a provision in the licensing contract prohibiting, on grounds of the trade mark's prestige, sale to discount stores?
2. Must Article 7(1) of that directive be interpreted as meaning that a licensee who puts goods bearing a trade mark on the market in the European Economic Area in disregard of a provision of the licensing contract prohibiting, on grounds of the trade mark's prestige, sale to discount stores, does so without the consent of the trade mark proprietor?
3. If not, can the proprietor invoke such a provision to oppose further commercialisation of the goods, on the basis of Article 7(2) of that directive?".
The Court of justice answered:
"1 Article 8 paragraph 2 of Directive 89/104 ... should be interpreted in the sense that a trade mark owner can invoke the rights conferred by that mark against a licensee who has breached a clause of a licence agreement which prohibits sales to discount stores, if that sale so damages the prestige/image of a product that it calls its quality into question.
2 Article 7 paragraph 1 of Directive 89/104 should be interpreted in the sense that a licensee who commercialises products under a mark in breach of a clause of the licence agreement only acts without the consent of the owner of the trade mark if the licensee at the same time by such commercialisation infringes the rights conferred by the mark in the sense of Article 8 paragraph 2.
3 Article 7 paragraph 2 of Directive 89/104 does not permit the owner of the trade mark to oppose the commercialisation of products bearing its mark through a discount store through the mere fact that a clause in the licence agreement prohibits sale of the products to discount stores".
Company Names Tribunal issues first decision
Company names adjudication O-318-08, 3 December 2008.
Four countries opt out of national search system for CTM applications
OHIM announcement, 17 December 2008.
WIPO announces new rules for Madrid trade marks
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