European IP Bulletin, Issue 62

Overview


In Depth

COMMUNICATIONS & NEW MEDIA

Britain’s Digital Future?

The Government’s vision for Britain’s digital future is mapped out in the much-anticipated Digital Britain: Final Report.

SNS – Data Protection and E Privacy Compliance

The Article 29 Working Party has given social networking service (SNS) providers quite a bit to think about with its Opinion 5/2009 on online social networking adopted on 12 June 2009.

COMMERCIAL

Clarifying the Law in Implied Terms: Is It Necessary to Make the Contract Work?

In Mediterranean Salvage & Towage Ltd v Seamar Trading & Commerce Inc [2009] EWCA Civ 531, the Court of Appeal revisited the recent analysis of implied terms in Attorney General of Belize v Belize Telcom Ltd in [2009] UKPC 11, in considering whether a term should be implied into a charterparty that the charterers must nominate a safe berth.

TRADE MARKS

Single Letters and Distinctive Character

In BORCO-Marken-Import Matthiesen GmbH & Co KG v OHIM (Case T-23/07), the Court of First Instance (CFI) held that a ruling that single letters could never be capable of distinguishing the goods and services of one undertaking from those of another was contrary to Article 4 of the Regulation.

Registration in Bad Faith

In Case C-529/07 Chocoladefabriken Lindt & Sprüngli v Franz Hauswirth GmbH (unreported), the European Court of Justice (ECJ) held that, depending on the intention of the applicant, and the degree of recognition of the third party rights at the time of filing, the filing of a Community trade mark (CTM) application could constitute bad faith.

The European Court of Justice Delivers Judgment on the Meaning of “Unfair Advantage” in L’Oréal v Bellure

The European Court of Justice  (ECJ) handed down a landmark judgment in L’Oréal v Bellure (Case C-487/07), concerning the importation and distribution in the United Kingdom of perfumes which looked and smelled similar to L’Oréal’s fragrances.

PATENTS

Lapsed Patents – Very Good Reasons Needed to Justify Restoration

In BL O/090/09 Pro Challenge Ltd (unreported), the UK Intellectual Property Office (IPO) refused an application to restore four patents, finding that there was a distinction between an unintended omission and an undesired consequence of that omission.

Novelty – The Non-Skilled Observer

In Folding Attic Stairs Ltd v The Loft Stairs Company Ltd [2009] EWHC 1221 (Pat), Mr Peter Prescott QC considered whether disclosure of a prototype to a non-skilled observer, who did not know what he was looking at, would destroy the novelty of the invention.

Principles of Claim Construction

Case Ancon Ltd v ACS Stainless Steel Fixings Ltd [2009] EWCA Civ 498, provides valuable guidance on the principles of claim construction.

ADVERTISING & MARKETING

Comparative Claims – Clarity and Substantiation

The Advertising Standards Authority (ASA) in its Adjudication against British Sky Broadcasting Ltd t/a Sky cleared Sky of any breaches of advertising rules relating to substantiation, truthfulness and comparisons with identified competitors.

DATA PROTECTION

Privacy Notices – A Clear and Plain Route to Compliance

The Information Commissioner’s Office (ICO) has published a new code of practice on privacy notices which aims both to help organisations comply with their obligations under the Data Protection Act 1998, and to urge individuals to take the time to read and understand privacy notices.

The Information Commissioner’s Office Approves Binding Corporate Rules for Accenture and Atmel

The Information Commissioner’s Office (ICO) has approved Binding Corporate Rules (BCRs) applications by both Accenture and Atmel.

Anyone for PIMS?

On 2 June 2009 the British Standards Institution (BSI) published the first British Standard on the management of personal data (BSI 10012:2009 Data Protection Specification for a personal information management system).

UK Data Controller Notification – Fees to Rise

As of 1 October 2009 the fees charged to data controllers to be notified on the register of data controllers will be split into two tiers.

DOMAIN NAMES

Famous Names and Parking Sites

In WIPO Case No. D2009-0563 Jim Carrey v BWI Domains it was found that the registration and resolution of the domain name jimcarrey.com to a parking site from which the registrant derived pay-per-click revenue constituted bad faith.