European IP Bulletin, Issue 58

Overview


In Depth

Commercial

Law Applicable to Contractual Obligations

Regulation 593/2008/EC on the law applicable to contractual obligations takes effect in the United Kingdom from 17 December 2009.

Arbitration, Anti-Suit Injunctions and the Brussels Regulation

In Allianz SpA (formerly Riunione Adriatica Di Sicurta SpA) v West Tankers Inc, the European Court of Justice ruled that anti-suit injunctions are incompatible with Regulation 44/2001/EC.

Communications & New Media

EU Safer Social Networking Agreement

On 10 February 2009, 17 social networking sites signed an agreement on a set of Safer Social Networking Principles for the European Union.

Entertainment & Media

Online Libel: Evidence of Substantial Publication and Abuse of Process

In Christopher Carrie v Royd Tolkien, the Claimant argued that libellous comments about him posted on his blog remain actionable, even after he had the opportunity to take them down but decided not to so that he could put them “in context”.

Child’s Right to Privacy

In Reklos and Davourlis v Greece, the European Court of Human Rights held that taking photographs of a baby, without parental consent, amounts to a violation of its right to privacy.

Trade Marks

Acquired Distinctiveness

In New Look Ltd v The Office for Harmonization in the Internal Market, the Court of First Instance held that, in order for a mark lacking distinctive character to be registrable on the basis of acquired distinctiveness, an applicant must demonstrate that the mark has acquired distinctive character through use in the whole Community.

Comparative Advertising: Smell-Alikes and Unfair Advantage

In L’Oréal SA v Bellure NV, the European Court of Justice Advocate General considered that it remains a matter for national courts to determine whether or not the use of a sign takes unfair advantage of that mark’s reputation.

Genuine Use and Give Aways

In Silberquelle GmbH v Maselli-Strickmode GmbH, the European Court of Justice held that there was no genuine use of a trade mark that was applied to goods given away free of charge when a consumer purchased other goods from the same origin.

Parallel Imports

Lawfulness of New Packaging in Which Drugs are Marketed in Another EEA State by a Parallel Importer

In The Wellcome Foundation Ltd v Paranova Pharmazeutica Handels GmbH, the European Court of Justice concluded that the lawfulness of the new packaging in which drugs are marketed in another European Economic Area State by a parallel importer is to be measured solely against whether it is capable of damaging the reputation of the trade mark and its proprietor.

Designs & Patents

Flat-Bed Airline Seat

In Virgin Atlantic Airways Ltd v Premium Aircraft Interiors Group Ltd, unregistered design rights and patent rights subsisting in Virgin’s flat-bed seat (the UCS) were at issue.

Patents

Insufficiency, Inventive Step and Technical Contribution

In Generics (UK) Ltd v H Lundbeck A/S, the House of Lords provided some clarity in relation to sufficiency.

Advertising & Marketing

Direct Marketing: Database Practice

An Advertising Standards Authority Adjudication against Direct Home Shopping Brands Ltd t/a Kaleidoscope Ltd reminds advertisers that the explicit and informed consent of consumers is required before disclosing their personal details to third parties for direct marketing purposes.

Intellectual Property

Software Patenting: European Patent Office Consultation

In the January 2009 Official Journal of the European Patent Office, an official announcement concerning the four pivotal questions being referred by the President under case G3/08 was published.

Domain Names

Resellers—Legitimate Use of Third Party Marks

In Oracle International Corporation v Contractors Network Ltd, Oracle International failed in its bid to have the disputed domain name, oraclecontractors.com, transferred to it after presenting what the panel described as “not a particularly strong” prima facie case under the Uniform Domain-Name Dispute-Resolution Policy.