European IP Bulletin, Issue 83

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Overview


In Depth

DATA PROTECTION

Article 29 Working Party Opinion On The Definition of Consent: An Unambiguous View of The Future

On 13 July 2011, the Article 29 Working Party published Opinion 15/2011 on the definition of consent (WP 187) for the purposes of processing personal data in the European Union. The Opinion provides a thorough analysis of the concept of consent as currently used in the Data Protection Directive (95/46/EC) and the amended e -Privacy Directive (2002/58/EC).

PATENT

Ranbaxy v AstraZeneca: Skilled Persons

In Ranbaxy v AstraZeneca [2011] EWHC 1831 (Pat), Ranbaxy was granted a declaration for non-infringement with respect to AstraZeneca’s patent relating to magnesium esomeprazole. Kitchin J held that the skilled person would have understood the relevant claim to be directed to use of magnesium esomeprazole to manufacture a medicament containing that active ingredient.

TRADEMARK / INFRINGEMENT

The Money Saving Expert Protects Distinctive Trade Marks

In Martin Lewis v Client Connection Ltd [2011] EWHC 1627 (Ch), the High Court of England and Wales awarded summary judgment in respect of infringement of Martin Lewis’ UK-registered trade marks. Mr Lewis demonstrated that his MONEY SAVING EXPERT mark was distinctive, thus there was a real prospect of the trial judge finding sufficient confusion.

TRADE MARK

Fashion Designer Allowed to Prevent Use of Name Despite Selling All Rights

Ruling on the proper interpretation of national legal provisions in invalidity proceedings (Edwin Co Ltd v Elio Fiorucci C-263/09, the Court of Justice of the European Union has held that the holder of a name is entitled to prevent its use as a Community trade mark where national law permits. The economic aspects of a right to a name may also be protected.

DOMAIN NAMES/TRADEMARKS

Geographical Indications Not Automatically Protected under the Uniform Domain Name Dispute Resolution Policy and Rules

In WIPO Case No DCO2011-0026 Comité Interprofessionnel du vin de Champagne (CIVC) v Steven Vickers, it was held that although CIVIC had rights in “champagne” as a geographical indication, it failed to show that its rights constituted an unregistered trade mark for the purposes of the Uniform Domain Name Dispute Resolution Policy and Rules.

TRADE MARK / INFRINGEMENT AND PASSING OFF

Users and Consumers

In (1) Schütz (UK) Ltd & (2) Schütz GmbH & Co. KGaA v Delta Containers Ltd & Protechna S.A. [2011] EWHC 1712, the issue of who is the consumer proved pivotal in deciding whether a trade mark had been infringed.

COPYRIGHT

US Copyright Alert System: A Model for Europe?

The Independent Music Companies Association (IMPALA) and International Federation of the Phonographic Industry (IFPI) have welcomed the recent voluntary agreement in the United States between internet service providers and the creative industries, in particular trade bodies representing the music and film industries, to deal with copyright infringement online. IMPALA and the IFPI have suggested that it is a model for Europe.

COPYRIGHT

Digital Copyright Exchange

A Digital Copyright Exchange was one of the more radical recommendations made by Professor Ian Hargreaves in his May 2011 report Digital Opportunity: A review of intellectual property and growth, but in its Response to the Hargreaves Review published on 3 August 2011, the UK Government appears to have welcomed the proposal.

COPYRIGHT (ENTERTAINMENT AND MEDIA)

Green Paper on Online Distribution of Audiovisual Works

The European Commission has published a Green Paper on the online distribution of audiovisual works in the European Union: opportunities and challenges towards a digital single market. The Green Paper launches a debate on how best to tackle the challenges the internet revolution poses whilst seizing the opportunities a move towards a digital single market will offer creators, industry and consumers.

ENFORCEMENT

Commission Publishes Responses to Consultationon Enforcement of IP Rights

The European Commission has published the responses to its consultation on the enforcement of intellectual property rights. On the key question of the suitability of Directive 2004/48/EC to deal with the challenges of the digital environment, views differed greatly. Many criticised the current regime’s shortcomings, although internet service providers stressed that there was no need to change the Directive.

DATA PROTECTION

Information Commissioner’s Office Draft Guidance on Monetary Penalties

The Information Commissioner’s Office has published a consultation paper on proposed changes to its Guidance About the Issue of Monetary Penalties following the introduction of additional powers to impose monetary penalties for serious breaches of the 2003 e‑Privacy Regulations.

CONSUMER LAW

Prize-Draw Competitions Referred to The Court of Justice of The European Union

In relation to Purely Creative Ltd v The Office of Fair Trading (OFT) [2011] EWCA Civ 920, the Court of Appeal of England and Wales referred the OFT’s unfair commercial practices case against promoters of prize draw competitions to the Court of Justice of the European Union (CJEU). It remains to be seen what the CJEU will make of this, but there is the potential for an important clarification in this area of law.