European IP Bulletin – Issue 66

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Overview


In Depth

COMMERCIAL

Consumer Remedies for Faulty Goods: The Right to Reject
The Law Commission for England and Wales and the Scottish Law Commission have published their Report on Consumer Remedies for Faulty Goods setting out a number of recommendations to improve and clarify the current law on consumer remedies including retaining the right to reject.

„The Battle of the Forms“
Tekdata Interconnections Ltd v Amphenol Ltd [2009] EWCA Civ 1209 concerns a dispute over the terms of a contract. The purchase order generated by Tekdata stated that the purchase was to be on Tekdata’s own terms and conditions. Amphenol’s purchase order said that the contracts were on the terms of its acknowledgement.

Exclusion Clauses: Reasonableness and Severability
In Lobster Group Ltd v Heidelberg Graphic Equipment Ltd [2009] EWHC 1919 (TCC), Mr Justice Ramsey ruled that the unreasonableness of a sub-clause excluding liability for direct loss and damage in an exclusion clause that was otherwise reasonable rendered the whole clause „unreasonable“.

Implication of Contract: Necessity and Restitution
In Whittle Movers Ltd v Hollywood Express Ltd [2009] EWCA Civ 1189, the Court of Appeal of England and Wales was reluctant to find that the parties entered into a binding agreement by conduct.

COMMUNICATIONS AND NEW MEDIA

Digital Economy Bill: Key Measures Overview
The Digital Economy Bill, which is published jointly by the UK Department for Business and the UK Department for Culture, Media and Sport, was released on 20 November 2009.

Regulation of Investigatory Powers Act 2000: Inadequate Safeguards and Sanctions
On 29 October 2009 the European Commission announced that it has moved to the second phase of the infringement proceedings against the United Kingdom for failing to implement EU e-privacy and data protection rules relating to the privacy of online communications.

Telecommunications Reforms
The European Parliament and the Council of Ministers have reached agreement on the European Union’s package of telecommunications reforms, comprising five directives that include provisions relating to internet access, cookies and data security breaches.

The UK Council for Child Internet Strategy: Click Clever Click Safe
On 8 December 2009, the UK Council for Child Internet Strategy published Click Clever Click Safe, its first strategy report on its activities so far and its future objectives.

INTELLECTUAL PROPERTY

Illicit P2P File Sharing: Draft Legislation
The Digital Economy Bill was introduced into the House of Lords on 19 November 2009. Among the legislative measures contained in the Bill, is the provision of the legal basis for the UK Government’s anti-file sharing and online piracy strategy.

SPORT

Report on UK Free-to-air Listed Events
The United Kingdom’s Report on the Review of Free-to-Air Listed Events was published on 13 November 2009. The purpose of the Report is to provide the Secretary of State with an independent review of the current list of major events (adopted in 1998) prior to the launch of the statutory process.

Off-Field Sportswear Licence Agreement: Implied Duty of Cooperation

In Hudson Bay Apparel Brands LLC v Umbro International Ltd [2009] EWHC 2861 (Ch), it was held that Hudson Bay had operated outside the scope of its licence to supply off-field apparel by supplying on-field products, but that Umbro had breached its obligations by failing to respond to requests for product approvals.

COPYRIGHT

Modchips: Substantial Part of a Copyright Work
On 9 November 2009 the Court of Appeal of England and Wales upheld convictions against Christopher Gilham for offences under Section 296ZB of the Copyright, Designs and Patents Act 1988 in relation to the sale and importation of modchips. These allow users to circumvent copy protection measures in order to play pirate video games on consoles like the Xbox, Playstation and Gamecube.

TRADEMARKS

Interim Injunction: Adwords Used in Evidence
In Wasabi Frog Ltd v Miss Boo Ltd [2009] EWHC 2767 (Ch), Mr Justice Warren granted an interim injunction to Wasabi Frog, proprietor of the womenswear website boohoo.com, to restrain a new website from retailing female fashionwear under the name Miss Boo.

Unfair Advantage Post Whirlpool
In Daimler AG v Sany Group Co Ltd [2009] EWHC 2581 (Ch), Susan Prevezer QC, sitting as a deputy High Court judge, dismissed claims by Daimler AG that its famous three pointed star was infringed by Sany’s use of a three pointed star logo on construction machinery and vehicles.

PATENTS

Sandwich Packaging: Windsurfing and „Mosaicing“
In BL O/342/09 Nampak Cartons Ltd v Rapid Action Packaging Ltd, a Patent Office hearing officer refused an application to revoke a patent relating to sandwich packaging on the ground of obviousness because to do so would require him to work backwards from the invention.