 Subjects -> PATENTS, TRADEMARKS AND COPYRIGHTS (Total: 28 journals)
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- “Osports”
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Abstract: The acquisition of commercial rights associated with sporting events (here football matches) complies with Art. 129 of the General Principles of the Civil Law of the PRC, which provides that civil rights may be obtained through civil legal acts, factual acts, events or other means permitted by law. Since commercial rights associated with sporting events are exclusive civil rights, a rightsholder can exercise these rights themselves or authorize another party to exercise these rights on their behalf or jointly exercise these rights with a partner. The Anti-Monopoly Law prohibits the abuse of rights to prevent behaviors that could exclude and restrict competition, but a “monopolistic position” created by exclusiveness that is intrinsic to certain rights does not amount to an abuse of rights. Exclusivity that is intrinsic to certain rights is not prohibited; only the abuse of exclusive rights is prohibited by the Anti-Monopoly Law. When defining a relevant market, three elements must be considered: product, geographic area and temporal dimension. When defining a relevant market, a demand-side substitution analysis must be undertaken, and a supply-side substitution analysis can also be conducted when necessary. Whichever method is used to define the relevant market, the fundamental characteristics of a product that meets the needs of consumers must be considered. These characteristics can be used as a basis when the definition of a relevant market is obviously incorrect. A “dominant position” means that an economic undertaking has the power to either control transactional conditions or influence market entry in the relevant market. If an economic undertaking possesses one of the two powers, it is deemed to have a dominant position. Whilst market share is the first element to be considered when determining whether an economic undertaking has a dominant position, and a higher market share is used as a basis for market dominance, it is only a reference indicator and a simplified method for relevant analysis. Other factors cannot be used in isolation as the deciding factor. Even if an economic undertaking adopts a low-price and high-sales volume approach or is unable to set a high price arbitrarily, it does not necessarily mean it does not have bargaining power or strong pricing power. In general, award of management rights is legal, as an economic undertaking is free to choose how to exercise their own rights (including alone, with a partner, or by granting a third party exclusivity to do so on their behalf).
PubDate: 2023-09-28
- Correction to: Guaranteeing the Right to a Fair Trial in IP-Related
Arbitration – In Germany Perhaps' And Elsewhere'-
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PubDate: 2023-09-01
- “Lännen MCE”
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Abstract: Article 125(5) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark, must be interpreted as meaning that the proprietor of an EU trade mark who considers that he or she has been prejudiced by the use, without his or her consent, by a third party, of a sign identical with that mark in online advertisements and offers for sale in respect of goods identical with, or similar to, those for which that mark is registered, may bring an infringement action against that third party before an EU trade mark court of the Member State in which consumers and traders targeted by those advertisements or offers for sale are located, notwithstanding the fact that the third party does not expressly and unambiguously list that Member State among the territories to which a supply of the goods in question might be made, if that third party has made use of that sign by means of paid referencing on a search engine website which uses a national top-level domain name of that Member State. By contrast, that is not the case simply because the third party concerned has used the natural referencing of images of its goods on an online photo-sharing service under a generic top-level domain, having recourse to meta tags using the trade mark concerned as a keyword.
PubDate: 2023-09-01
- The Origin and Purpose of Legal Protection for the Integrity of Copyright
Metadata-
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Abstract: Abstract Rights management information is copyright metadata legally protected by copyright law. The origin of such protection was a United States policy for governance of the information superhighway (the internet) and digital networks. The main discussion documents leading up to the WIPO internet treaties reveal that the policy behind protecting the integrity of copyright metadata was aimed at higher objectives of public interest, such as consumer protection, market efficiencies, and authenticity of creative content. Copyright management information was envisaged as one element of digital infrastructures for creating global electronic commerce, but digital copyright was also foreseen as important for the dissemination of cultural heritage. Today these infrastructures have become a reality through legislation on orphan and out-of-commerce works in Europe, and for the licensing and distribution of royalties for musical works and sound recordings in the US. Countries that implement the WIPO treaties or transplant the US law without considering the whole policy behind the protection of copyright metadata are falling into a copyright management gap because, globally, the discovery, visibility, compensation, and monetisation of local content from places without adequate digital rights metadata infrastructures will be more challenging. This article shows that US digital dominance is codifying and writing the DNA of cultural content.
PubDate: 2023-09-01
- Abusive Trade Mark Filings: Some Recent Applications of the Concept of Bad
Faith in the Case Law of the Court of Justice and General Court-
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Abstract: Abstract This article discusses bad faith as a ground for trade mark invalidation under European Union law in view of the recent jurisprudence of the Court of Justice and General Court. The author analyses various cases of trade mark filings recently challenged before courts in Europe which may be qualified as made in bad faith due to an attempt to abuse some of the rules governing trade mark law. The author first discusses the famous SkyKick judgment (case C-371/18) of the Court of Justice, concerning very broad specifications of goods or services, including the central question of the importance of the intention to use the mark, and possible implementation of the judgment by the courts. Then the study touches upon the issue of repeat applications and carries out an assessment of the Monopoly judgment (case T-663/19) rendered by the General Court. Finally, the paper discusses the application of the bad faith ground to the filings made for so-called “historical” (or “vintage”) trade marks, namely marks previously registered by third parties that still enjoy some reputation; this issue was recently addressed by the General Court in Nehera (case T-250/21). In view of the developments of the case law applying the concept of bad faith, there is arguably the need to interpret and implement this ground for invalidity taking into account the whole trade mark system, to ensure compliance with its rules and not to question the rationale of other mechanisms governing trade mark law.
PubDate: 2023-09-01
- Pairing Sturgeon with Champagne: Towards a Due Cause Exception in the Law
of Geographical Indications-
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Abstract: Abstract It is commonly lamented that geographical indications (GIs) receive extravagant protection under European Union (EU) law. Yet due to the special nature of GIs it can be hard to conceptualize sensible limitations to protection and so far the question where such limits (if any) should lie has received little attention in scholarship. This article advances the argument for a “due cause exception” in the law of GIs. It examines two categories of use that may legitimately benefit from such an exception: descriptive uses and uses that fall within the scope of freedom of expression provisions, for instance use of GIs as part of artistic works or parodies. The article argues that these and other uses should be evaluated according to a two-pronged test to establish whether they are objectively justified and in accordance with honest practices. Lastly, it argues that even if no express due cause exception is or becomes part of the applicable GI regulations, guidance by the Court of Justice of the European Union on the interpretation of EU law in light of EU primary law mandates observance of countervailing fundamental rights also within the contours of the current regulations. Because the categories of use outlined in this article fall within the scope of the freedom to conduct a business and the freedom of expression and the arts, at least some allowance must be made for these uses when interpreting and applying the protection due to GIs.
PubDate: 2023-09-01
- Maciej Bernatt: Populism and Antitrust – The Illiberal Influence of
Populist Government on the Competition Law System-
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PubDate: 2023-09-01
- Guaranteeing the Right to a Fair Trial in IP-Related Arbitration – In
Germany Perhaps' And Elsewhere'-
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Abstract: Abstract The trend of solving IP disputes through arbitration, which is final and binding on the parties and any person claiming through or under any of the parties, is observable globally. However, this article doubts that the fair trial or fairness principle will be upheld in IP-related arbitration as a matter of course. This doubt is based on some of the inherent shortcomings of arbitration in general, and international arbitration in particular, namely that there is insufficient oversight and the parties are oftentimes handicapped by the geographic remoteness and astronomical costs of arbitration. This article will illustrate its concerns by looking at one recent ICC arbitration case which awarded the patent licensee a staggering amount of damages in a blatant violation of the patent licensor’s right to a fair trial. Fortunately, the German Federal Court of Justice exceptionally intervened to remedy the wrong. Still, lingering issues of how to reform IP-related arbitration to better suit IP’s public policy considerations need to be addressed.
PubDate: 2023-09-01
- “CQI Report II”
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Abstract: Code of Civil Procedure Sec. 138(4) In patent infringement litigation, the party against whom a claim is made can generally be required to respond specifically to the opponent's submissions on the technical features of the contested embodiment. Patent Act Sec. 14 The question whether and to what extent rights under a patent are exhausted by putting products on the market is to be assessed according to the law of the country of protection (supplement to decision of the Federal Supreme Court, 22 February 2022 – X ZR 103/19, GRUR 2022, 1209 para. 42 – Bakterienkultivierung). A covenant not to sue generally leads to the exhaustion of rights with regard to products put on the market on this basis. As to the question whether a covenant to be sued last leads to exhaustion, it is of particular importance whether the contracting party, in the normally expected course of events, is at risk of being held liable by the patent proprietor for infringement of the patent. Consent to the placing on the market of a product may be deemed to be consent to the placing on the market of a larger device incorporating it, if this is the only commercially reasonable use. Consent to the placing of a product on the market may lead to the exhaustion of rights in respect of a larger device equipped therewith if all the properties and functions defined in the patent are realised by the product covered by the consent, and if the other components of the larger device are of no importance in this respect.
PubDate: 2023-08-31
- “Laboratoires Vivacy v. Teoxane”
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Abstract: Pursuant to the final paragraph of Art. R. 615-2 of the French Intellectual Property Code, a presiding judge who authorises saisie-contrefaçon proceedings may order the interim sequestration of the documents seized to ensure that trade secrets are respected. Other measures, such as placement under seal, which is different to, and more protective than seizure, cannot be ordered. The presiding judge ruling on an application for saisie-contrefaçon proceedings does not have discretionary powers to only resort, as needed, to the special interim sequestration procedure to ensure the protection of trade secrets of the party against which the order has been made.
PubDate: 2023-08-31
- “Trastuzumab”
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Abstract: When the marketing authorisation does not categorise a substance as an “active ingredient”, there is a rebuttable presumption that this substance has no pharmacological, immunological or metabolic action of its own covered by the therapeutic indications of said marketing authorisation.
PubDate: 2023-08-29
- Public Biological Databases and the Sui Generis Database Right
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Abstract: Abstract The sui generis database right is an intellectual property right created in the European Union to stimulate investment in the curation of databases. Since its inception, communities engaged in research and development efforts have questioned its potential to incentivise database production, and posit that it stifles productive downstream uses of existing datasets. European courts have restricted the right’s ambit through a restrictive interpretation of the circumstances in which it applies, which we argue, enables downstream use of biological databases. Nonetheless, residual ambiguities about potential infringement of the right exist. The prospect of unintentional infringement can frustrate downstream innovation. These ambiguities are compounded because the criteria that determine whether or not the right applies are reliant on information that is not available to the prospective downstream users of public datasets. Repealing the sui generis database right is recommended. Legislatures are advised to refrain from the implementation of broad novel intellectual property rights in the future, without first adopting safeguards that mitigate the potential for such rights to frustrate the reuse of available intangibles to the detriment of pro-social innovation.
PubDate: 2023-08-29
- “La Liga”
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Abstract: The concept of services in the field of intellectual property rights, which are distinct from intellectual property rights stricto sensu, includes audiovisual recordings. The infringement of exclusive rights generated by the broadcasting of football matches are not included in Art. 270.1 of the Criminal Code as a literary, artistic or scientific work or service. Although there may be some moments with undeniable aesthetic value in a football match, as in any sports event, to interpret these moments or sequences of technical perfection as defining features of an artistic event may lead to the transgression of the limits of the principle of typicality. A football game is a sporting event, not an artistic one.
PubDate: 2023-08-28
- “Amgen v. Sanofi”
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Abstract: If a patent claims an entire class of processes, machines, manufactures, or compositions of matter, the patent’s specification must enable a person skilled in the art to make and use the entire class. I.e. the specification must enable the scope of the invention as defined by its claims. A specification must not always describe with particularity how to make and use every single embodiment within a claimed class (an example will suffice). Nor is a specification necessarily inadequate just because it leaves the skilled artist to engage in some measure of adaptation or testing. A specification may call for a reasonable amount of experimentation to make and use a claimed invention, and reasonableness in any case will depend on the nature of the invention and the underlying art. Enablement is not measured against the cumulative time and effort it takes to make every embodiment within a claim. There is (only) one statutory enablement standard – the more a party claims for itself, the more it must enable.
PubDate: 2023-08-22
- “Thun”
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Abstract: Being displayed in just one exhibition can fulfil one of the prerequisites for recognising artistic value which, even if not entirely concurrently, must refer to: the recognition, in cultural and institutional circles, that the item concerned possesses aesthetic and artistic qualities; display in exhibitions or museums; publication in specialist journals; the awarding of prizes; the acquisition of such a high market value as to transcend that linked solely to its functionality; or its creation by a renowned artist. In order to ascertain whether products can be confused as a result of slavish imitation (here: objects depicting the animal world where there is no trade mark confusion), they must be compared not through detailed and distinct examination of their individual distinguishing features but through their overall impact, taken as a whole, from the perspective of the consumer. The fact that the prohibition of slavish imitation is intended to ensure that the imitator does not create confusion with competitors’ products must also be considered. Fair and equitable quantification of damages is legitimate only on the condition that evidence of the harm done exists and provides plausible parameters for quantification. Equitable liquidation must assume the existence of certain compensable harm, and that it is impossible or extremely difficult to prove the precise amount of that harm. The court must indicate, even if only briefly and within the scope of its discretion, the criteria followed to determine the extent of the harm and the basis on which it decided on the amount of damages. Said quantification must necessarily take into account the specific economic and organisational conditions of the injured party and cannot be based on general parameters that are valid for any type of business or profession.
PubDate: 2023-08-22
- “Guanidinoacetic Acid”
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Abstract: When determining whether allegedly infringing information is substantively the same as the trade secret in question, the following factors may be considered: the extent or level of similarity between the allegedly infringing information and the trade secret; whether relevant personnel in the field concerned could easily identify the difference between the allegedly infringing information and the trade secret when the alleged infringement took place; whether the application, method for the application, purpose and end results of the allegedly infringing information are substantially different from those of the trade secret; the availability of information related to the trade secret in the public domain; other factors that need to be considered. Parties to a technical secret licence contract may reach an agreement regarding the scope within which the licensee is allowed to use the technical secret, including the time limits, territory, method of exploitation or use of and the number of personnel who have access to the patent or technical secret concerned. Parties may also reach an agreement regarding the non-disclosure period. Where a technology licence contract has not expressly stipulated whether the licensee may allow others to use or disclose a trade secret after the non-disclosure period expires, in order to determine if a licensee may or may not do so, the following elements must be considered: the purpose of the contract, the rights and obligations of both parties, the contract price, how the contract has been performed, business practices and the principle of good faith. According to the law, non-disclosure obligations include general passive obligations under tort law, such that no one is allowed to use or allow others to use a trade secret without the permission of the rights holder as stipulated in Art. 9(1) of the Anti-Unfair Competition Law, as well as obligations based on the principle of good faith that exist before a contract is signed, during the contract term and after the contract is terminated. Trade secrets to which parties have access during a contract negotiation process must not be disclosed or improperly used, regardless of whether a contract is entered into. After a contract is terminated, the parties are still bound by the non-disclosure obligations, and if they fail to fulfil these obligations, they shall be liable for damages. Given the nature of a technology licence contract, a licensee is only granted the right to use the trade secrets thereof. The non-disclosure period stipulated in a contract shall not be interpreted as meaning that a transferee or licensee has permission to allow others to use or even to disclose trade secrets thereof after the non-disclosure period expires. As disclosure of a trade secret is equivalent to waiving the rights thereto, no one else other than the rights holder may exercise such a right, unless expressly stated otherwise within a contract. As no distinction is made between technology transfer contracts and technology licence contracts under the Contract Law, the provisions for technology transfer contracts shall apply to technology licence contracts. Under a technology licence contract, the minimum non-disclosure obligations a licensee must fulfil include: a licensee must not allow any third party to use relevant trade secrets without the consent of the licensor; a licensee must take measures to keep the trade secrets confidential, and must not disclose the trade secrets intentionally or through omission or negligence; regarding technology and related information provided directly or through training by a licensor, a licensee must fulfil its obligations as per the scope and time limit stipulated in the contract; for technologies that require protection beyond the scope and time limit stipulated in a contract, a licensee must follow the principle of good faith and fulfil non-disclosure obligations attached to the contract.
PubDate: 2023-08-22
- The Significance of Bad-Faith Premises for the Strategy of Trade Mark
Protection in the Light of the Latest EU Case-Law-
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Abstract: Abstract EU case-law has long considered trade mark applications made in bad faith to be dishonest practice that involves a sign used by a third party. This approach stems from the crucial factors of bad faith stipulated by the CJEU in the Lindt case C-529/07. However, recent CJEU case-law clearly suggests that a trade mark application can also be alleged to be in bad faith when it has nothing to do with a third-party sign but instead involves a dishonest strategy for protecting the applicant’s own trade marks. The aim of this paper is to provide a comprehensive catalogue of premises for finding bad faith in the context of a trade mark application, and to analyse their importance from the perspective of business strategy for protecting trade marks. It follows from the relevant case-law that proving an applicant’s bad faith where the latter is alleged not in relation to the use of a third-party sign may be rather problematic, as it is difficult to demonstrate objective circumstances to corroborate an applicant’s subjective intentions, particularly when such intentions concern solely their own trade mark protection strategy. An additional difficulty comes from the CJEU’s SkyKick case C-371/18, according to which the absence of any intention to use a trade mark does not per se constitute grounds for finding bad faith. Moreover, an allegation of bad faith may provide a basis for extending legal protection to a third-party trade mark not registered in a given territory, which may be particularly useful for businesses that export goods worldwide. However, at the same time, care must be taken to reasonably balance such protection for non-registered marks with one of the crucial premises of EU trade mark protection, which is based on the principle of “first to file” not “first to use”.
PubDate: 2023-08-22
- “Brumm Models”
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Abstract: Although the use of a sign on miniature model cars is descriptive and therefore, as such, always lawful, the same use, which is clearly not for the purposes of distinguishing the goods or services but for ornamentation, is not necessarily unlawful merely because it is not exempt under Art. 6(1)(b) of Directive No. 89/104/EEC. It is for the court dealing with the case on the merits to establish specifically whether the use in question is “without due cause” and likely to allow the user to take “unfair advantage” of, or cause detriment to, the distinctive character or the reputation of the trade mark. Whether or not a trade mark with reputation is infringed can therefore only be determined on the basis of the parameters laid down by Art. 5(2) of the Directive, which correspond to those in Art. 20(c) of Italy’s Legislative Decree No. 30 of 2005.
PubDate: 2023-08-17
- “Liability for Affiliates (Haftung für Affiliates)”
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Abstract: The intrinsic reason for attributing the business activity of the agent pursuant to Sec. 8(2) Act against Unfair Competition lies primarily in an extension of the business operation benefiting the owner of the business and a certain control of the risk area by this owner (following from decision of the Federal Supreme Court, 7 October 2009 – I ZR 109/06, GRUR 2009, 1167 [juris para. 21] = WRP 2009, 1520 – Partnerprogramm, with further references). If affiliates develop their own products or services, the content of which they design at their own discretion and use to earn commission from various providers, the advertising via the affiliate link is part of the product, the content of which is designed by the affiliates under their own responsibility and in their own interest. The links are only placed by them in order to generate commission to their benefit. Such an affiliate’s own business operation does not constitute an extension of the business operation of the owner of the business.
PubDate: 2023-08-16
- Why Harmonised Standards Should Be Open
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PubDate: 2023-08-16
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