European IP Bulletin, Issue 12, May 2004
May 2004
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INTELLECTUAL PROPERTY (click the header at left to view all of the Intellectual Property case notes)
1. New EC Technology Transfer regime
Davina Garrod, an Associate in McDermott Will & Emery’s London office, outlines the revised EC TECHNOLOGY TRANSFER BLOCK EXEMPTION REGULATION ("TTBE") which came into force on 1 May, 2004. The TTBE is the European Commission’s "safe harbour" from the application of Article 81 EC for certain technology licences (patent/know how licences).
2. Naomi’s Privacy - Breach of Confidence
This is the first media case to have reached the House of Lords following implementation of the Human Rights Act 1998 and is therefore significant. However, creation of a “back door privacy law” as a result of this judgment appears unlikely. Clare Sellars, an Associate in McDermott Will & Emery’s London office, reviews this case which, it is claimed, has extended the existing law of breach of confidence in English law.
The Office of the United States Trade Representative (USTR) released its annual report on the adequacy and effectiveness of intellectual property rights relating to its industries around the globe. IPR protection in the Ukraine remained inadequate and would continue to be designated a Priority Foreign Country.
COPYRIGHT (click the header at left to view all of the Copyright case notes)
In this case, the European Court of Justice has confirmed that in the absence of an objective reason, an intellectual property right owner enjoying a dominant position on a given market does not have the right to refuse to license a competitor, if such a refusal will block the competitor’s access into the market and stifle innovation.
The European Commission will adopt Community legislation on the collective management of rights, especially with respect to the governance of collecting agencies. An interoperable Digital Rights Management system will be instituted along with a Community-wide licensing scheme for the exploitation of these rights.
A computer magazine and a software company in Germany have released a software that makes it possible to bypass any form of anti-copying technology used to protect music CDs.
PATENTS (click the header at left to view all of the Patents case notes
The Advocate-General disappointed many pharmaceutical companies when he confirmed that references to first authorisation of medicinal products in Council Regulation No. 1768/92 providing for supplementary protection certificates include reference to both human and veterinary applications of medicinal products. Pharmacia Italia SPA, therefore, lost its opportunity to obtain extension of its patent term.
TRADE MARKS (click the header at left to view all of the Trade Marks case notes)
The registration of the state symbols of the former East Germany, including the iconic hammer and compass symbol, is to be challenged before the German Patent Office.
In this case, the European Court of Justice has considered if the determination of whether a mark has become generic under Article 12(2)(a) of Directive 89/104 must be made through the eyes of consumers or from the perspective of those in the trade.
Under Community trade mark law, marks that consist of important state symbols or imitations of them from a heraldic point of view which have not been authorised by the competent authority are to be refused registration pursuant to the Paris Convention.
In what could prove to be the opening moves for future litigation for breach of contract, the Trade Mark Agreement between Apple Corps and Apple Computer was brought before the English High Court to determine where the contract was made and which jurisdiction applies, given that neither was specified in the agreement.
ACKNOWLEDGEMENTS
McDermott, Will & Emery would like to acknowledge the invaluable contribution to the Bulletin made by Angel Adrian, Lucas Arrivillaga, Afegieme Komolafe, Malcolm Langley, YunJoo Lee, James Mitchiner, Ilanah Simon and Daphne Zografos from the Queen Mary Intellectual Property Research Institute, University of London.
