European IP Bulletin, Issue 43


Patent ambushes are anti-competitive in Europe

The European Commission has sent a Statement of Objections to Rambus Inc., stating that its behaviour is in contravention of Article 82 of the EC Treaty as it amounts to an abuse of a dominant position. Rambus is alleged to have been charging unreasonable royalties for the use of certain patents subsequent to a „patent ambush“.

Nike European Operations Netherlands NV v Tomas Rosicky

In a recent English High Court decision, an interim injunction was granted pursuant to Article 31 of the European Jurisdiction Regulation 44/2001 in support of substantive proceedings to be commenced in the Netherlands.

Trade Marks (click the header at left to view all of the Trade Mark case notes)

esure’s computer mouse trapped for free riding

The English High Court has confirmed that the likelihood of confusion is not a requirement for the establishing that a trade mark takes unfair advantage of, or can be detrimental to, the reputation of an earlier mark.

O2lacks distinctiveness

On 6 July 2007, seven applications submitted by O2 Holdings LTD in respect of icons used for computer and mobile telephone screens were refused on appeal by the UK Trade Mark Registry. The applications were refused as being devoid of distinctive character.

Copyright & Design (click the header at left to view all of the Copyright & Design case notes)

Good news for illegal file sharers?

The Attorney General has recommended, in Productores de Música de España Promusicae v Telefónica de España SAU (C-275/06), that the European Court of Justice should rule that ISPs are not allowed to disclose the personal details of suspected file sharers.

ISP ordered to police internet traffic for copyright infringement

In an unprecedented and surprising decision, the Belgian Tribunal de Première Instance has ordered the internet service provider, Scarlet, to filter all internet traffic for music files that are protected by copyright owned by companies and individuals represented by SABAM. The case, SABAM v Scarlet (formerly Tiscali), has sent shock waves through the ISP community, but has been celebrated as a success by the music rights sector.

The great balls of laundry design

The English High Court has ruled (as a preliminary issue) on what the relevant sector is when assessing novelty and individual character of a registered design.

Software as commissioned work: Who can use it and on what conditions?

In the case of Laurence John Wrenn v Stephen Landamore [2007] EWHC 1833 (Ch), the English High Court held that, where a computer program has been written as a commissioned work, the commissioner will be entitled only to an exclusive licence rather than an assignment. The programmer will be entitled to reasonable royalties.

Media Entertainment & Privacy (click the header at left to view all of the Media Entertainment & Privacy case notes)

Privacy in public appearances: no ‘press-free zone’ for children of celebrities

A picture of the two year old child of celebrity parents was taken in an Edinburgh street and published in a magazine. Despite objections raised by the parents, the English High Court ruled that the action of taking the picture did not constitute a breach of the right for respect of private and family life.

Privacy right versus public interest

In T (By Her Litigation Friend The Official Solicitor) v British Broadcasting Corporation [2007] EWHC 1683 (QB), the High Court had to balance the privacy rights of a mother, under Article 8 of the European Convention on Human Rights, against the right of freedom of expression of the BBC under Art. 10 of the Convention.

Responsible journalism and the reportage defence

In Christopher Roberts, Barry Roberts v Gerry Gable, Steve Silver and Searchlight Magazine Ltd [2007] EWCA Civ 721, the Defendants published a magazine that contained an article in which the appellants were accused of various crimes. The Appellants sued the magazine, its editor and the article’s author for libel. The Defendants successfully invoked the reportage defence.

Procedure(click the header at left to view all of the Procedure case notes)

To disclose or not to disclose: is that the question?

In a recent appeal for further disclosure in Nichia Corp v Argos Ltd[2007] EWCA Civ 741 (19 July 2007), the Court of Appeal asked the parties to agree a more limited scope of disclosure, or send the matter back to the Judge at first instance to review the case.

Global nature of IP rights does not affect English jurisdiction

In Crucial Music Corporation et al. v Klondyke Management AG et al. [2007] EWHC 1782 Ch., German and Swiss parties were sued for damages in England for breach of warranties given in an English contract for the transfer of intellectual property rights. The Defendants alleged that the global nature of the intellectual property rights prevented the Lugano Convention from being applied. The High Court held differently and confirmed the decision of Master Moncaster, which was under appeal.

Voice over Internet Protocol company voices concern over T- Mobile’s anti-competitive conduct.

In a ruling on an application for interim orders against T-Mobile (UK) Ltd, Truphone intended to launch a new telephone service using Voice over Internet Protocol (VoIP) technology. However, T-Mobile had declined to activate Truphone’s numbers, rendering Truphone unable to launch its service. The Court granted interim orders against T-Mobile.

Arrow on target with its suit for non-infringement declaration

In the case of Arrow Generics Ltd v Merck & Co., Kitchin J held that the Court has a jurisdiction to grant negative declarations. However, such relief is merely discretionary, and the grant should serve a useful purpose. Moreover, the relief sought should be clearly defined to make it properly justiciable, and there should not be any exceptional circumstances that could deprive the Court from exercising its jurisdiction from granting such a relief.