European IP Bulletin, Issue 98

| |


In Depth


High Court of England and Wales Upholds Lengthy Restrictive Covenant as Reasonable Restraint of Trade Clause
In Cavendish Square Holdings BV and Another v El Makdessi [2012] EWHC 3582, the High Court of England and Wales held that a restrictive covenant that would last for a minimum of eight years in the absence of a breach was reasonable and enforceable. The Court also held that an option for the seller to sell his shares to the buyer in the event of a breach of contract was not, on its own, a penalty clause.


UK Court Rules That Computer Program Functionality is Not Protected by Copyright
On 25 January, Mr Justice Arnold handed down his decision in SAS Institute Inc. World Programming Limited [2013] EWHC 69 (Ch), following the Court of Justice of the European Union referral judgment on 2 May 2012, concerning the extent to which copyright protects the functionality of computer programs.

Data Protection

UK Data Anonymisation Code
The UK Information Commissioner’s Office (ICO) has published a code of practice on managing data protection risks related to data anonymisation (the code). The code explains the issues surrounding the anonymisation of personal data and the disclosure of such data once it has been anonymised.


Patents County Court Finds Infringement of UK Unregistered Design But no Infringement of Community Registered Design
In Kohler Mira Ltd v Bristan Group Ltd [2013] EWPPC Civ 2, the Patents County Court found an infringement of a UK unregistered design right (UDR) in an electric shower unit, but no infringement of two registered Community designs (RCDs) relating to the same model of shower unit.


Malaria Combination Patent Invalidated for Obviousness
In Glenmark Generics (Europe) Limited & others v The Wellcome Foundation Limited & Glaxo Group Ltd [2013] EWHC 148 (Pat) the High Court has held that a patent for the 5:2 ratio combination of two anti-malarial drugs—atovaquone and proguanil—was obvious, based on prior art that disclosed the two drugs in combination, but not at the claimed ratio.

Trade Marks

CJEU Confirms Later Community Trade Mark is No Defence in Infringement of an Earlier Community Trade Mark
On 21 February 2013, in relation to Case C-561/11, Fédération Cynologique Internationale v Federación Canina Internacional de Perros de Pura Raza, the Court of Justice of the European Union (CJEU) has confirmed that actions for infringement of Community trade marks (CTMs) should be possible against third parties holding a later CTM.

EU General Court Finds No Likelihood of Confusion Between K Sport Figurative Mark and Earlier K2 Sports Mark
In Case T-54/12 K2 Sports Europe GmbH v OHIM, the EU General Court has upheld a decision of the Office of Harmonization for the Internal Market (OHIM) Board of Appeal (the Board) that an application made by Kahru Sport Iberica (Kahru) to register a figurative Community trade mark (CTM) comprising of the word sport preceded by an element said to resemble a letter “K” did not infringe an K2 Sports Europe GmbH’s (KSE) prior registered word mark “K2 Sports” for goods in Classes 18, 25 and 28.

EU General Court Upholds OHIM Decision Finding Likelihood of Confusion Between BABILU and BABIDU for Advertising Services
In Present-Service Ullrich GmbH & Co. KG v OHIM [2013] T-66/11, the EUGC has upheld a decision of the Office of Harmonization for the Internal Market (OHM) Board of Appeal (the Board) finding a likelihood of confusion between the word mark BABILU and an earlier Community trade mark (CTM) registration for BABIDU, both registered in respect of advertising services.