European IP Bulletin, Issue 35

Overview


In Depth

Hot Topics

1. Creative Commons Licences Upheld by the Dutch Court

In March 2006, the District Court of Amsterdam handed down its decision in Adam Curry v. Audax Publishing B.V., the first case in Europe to consider the legal effect of a Creative Commons licence.

Copyright

2. Laserdisk: European Court Rejects International Exhaustion (Again)

The European Court of Justice has confirmed that the exhaustion principle may not have international application. Hence, the importation of copyright-protected works which are put onto the international market by the right holder, or with his consent, outside the European Union may infringe copyright.

3. Tortious Liability for links to mp3 files: Further Obstacles to Illegal Downloads in the Netherlands

In Stichting Bescherming Rechten Entertainment Industrie Nederland (BREIN) V Techno Design “Internet Programming” B.V., the Court of Appeal of Amsterdam quashed a previous District Court judgment and held that the act of a website owner in offering links to illegal music material in the form of mp3 files constituted a tortious act, which may result in injunctive relief and damages in favour of the victims

Patents

4. Extending Pharmaceutical Monopolies

Another attempt at using a later patent to prolong a patentee’s monopoly on his pharmaceutical product has been defeated. In so doing, the Scottish Court of Session has demonstrated the flexibility of the rule of novelty and provided evidence that Scottish courts may hope to entertain a larger proportion of patent cases in the future.

Trademarks

5. Cheeses to Chose

In an intriguing decision by the Nominet Dispute Resolution Service in Fine Cheese Company Ltd v Lawson’s Cheeses, registered domain names and the common law rights of a trader over its trading name have taken precedence over trade mark law.

6. Hormel Foods Corporation

Hormel Foods Corporation, the company behind the spicy luncheon meat, SPAM, has failed in an attempt to register Community Trade Marks in respect of the term ‘spam’ for unsolicited bulk email.

7. PAMPAM and PAMPIM Confused OHIM

The European Court of First Instance in the case of PAM-PIM’S BABY-PROP followed the Puma v Sabel “global appreciation of the likelihood of confusion” test in order to identify similarity between marks as a way to find the likelihood of confusion according to Art 8(1)(b) of Council Regulation (EC) 40/94.

8. L & D v OHIM, Julius Sämann Ltd: Likelihood of Confusion

The European Court of First Instance dismissed an action by L&D to annul an earlier decision of the Second Board of Appeal. The CFI showed clearly how two similar marks should be compared and what elements are to be considered in determining whether there is a likelihood of confusion.