European IP Bulletin – Issue 79

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Overview


PATENTS

Gedeon Richter plc v Bayer Schering Pharma AG: “Obvious to Try” and “Fair Expectation of Success”

In examining for invalidity on the grounds of obviousness Mr Justice Floyd looked at the “obvious to try” test.

COPYRIGHT AND DATABASE RIGHT

Football Dataco Ltd v Sportradar GmbH:  Copyright and Database Right Infringement and Jurisdiction

The Court of Appeal of England and Wales has referred questions to the Court of Justice of the European Union in relation to the interpretation of infringement under the Database Directive.

TRADE MARKS

Annette Campbell and Bente Zaber v Catherine Hughes (IAN ADAM): Name of Recently Deceased Famous Individual and Bad Faith

Overturning the decision of a hearing officer at the UK Intellectual Property Office, Geoffrey Hobbs QC has held that an application to register the name of the well known deceased voice coach Ian Adam by his former business associate had been made in bad faith.

P Ferrero SpA v OHIM: Trade Mark Reputation and Existence Irrelevant in Assessing Likelihood of Confusion

The Court of Justice of the European Union has upheld a decision of the EU General Court rejecting Ferrero’s invalidity action based on Ferrero’s earlier trade marks for KINDER against a figurative Community trade mark incorporating the words TiMi KINDERJOGHURT.

CONFIDENTIAL INFORMATION

Andrew Gray v News Group Newspapers Ltd: Privilege Against Self-Incrimination and Scope of “Intellectual Property” Exception

In an action for misuse of confidential information and invasion of privacy, the scope of the intellectual property exception to the privilege against self incrimination is held to include proceedings for breach of confidence involving commercially confidential information.

DATA PROTECTION

“Your data, your rights: Safeguarding your privacy in a connected world”: The Four Pillars of Data Protection Reform

In a speech entitled “Your data, your rights: Safeguarding your privacy in a connected world” delivered on 16 March 2010 to the EU Privacy Platform, Vice-President of the European Commission Viviane Reding outlined strict privacy rules for personal data held on the internet.

COMMERCIAL

OFT Market Study on Consumer Contracts

The market study by the Office of Fair Trading (OFT) on consumer contracts has considered the evidence on consumer problems with contracts. The report of the study sets out a framework for assessing harm from consumer contract terms, identifies how the existing legislation addresses those harms, and outlines contract problems of most concern to the OFT.

MEPs Give European Parliament Mandate to Agree Draft Consumer Rights Directive: Distance Sales and Off-Premises Sales

At the Brussels plenary session on 23 and 24 March, the European Parliament backed proposed amendments to the draft Consumer Rights Directive, strengthening consumer rights in distance sales and off-premises sales.

AXA Sun Life Services plc v Campbell Martin Ltd: Effectiveness of Entire Agreement Clause and Exclusion of Set-Off Clause

The Court of Appeal of England and Wales was asked to decide whether an entire agreement clause prevented the Respondents from bringing claims based on alleged misrepresentations, breach of collateral warranties, and/or implied terms. Practitioners should take note of the decision due to the general guidance provided on the use of entire agreement clauses to exclude liability for misrepresentation.

Bribery Act 2010 Commencement, Interpretation and Guidance

The Bribery Act 2010 comes into force on 1 July 2011. The UK Government has published guidance to help organisations understand the legislation and deal with practical issues that may arise. The Act creates offences of, inter alia, (i) offering or receiving bribes, (ii) bribing foreign public officials, and (iii) commercial organisations failing to prevent a bribe being paid on that organisation’s behalf. The aim of the Act is to tame corruption and update current domestic legislation.

ADVERTISING AND MARKETING

Kingspan Group plc v Rockwool Ltd: Unfair Comparative Advertising and Brand Denigration

The High Court of England and Wales has held that a promotional campaign conducted by the Defendant was false and misleading and infringed the Claimant’s trade marks. The campaign attributed claims to the Claimant that they had not made and gave the “realistic” impression that the Claimant’s products were dangerous when they were not.

E-COMMERCE, IT AND BANKING TECHNOLOGY

Pierre-Fabre Dermo-Cosmétique v Président de l’Autorité de la Concurrence: Selective Distribution and Restrictions on Internet Sales

Advocate General Ján Mazák has given his Opinion that an absolute ban on selling through the internet is a “hardcore restriction” under the Vertical Agreements Block Exemption Regulation.

GENERAL

Jones v Kaney: The UK Supreme Court Abolishes Immunity From Suit for Expert Witnesses.

The UK Supreme Court has abolished the principle of immunity from suit for expert witnesses on the grounds that there is no public policy justification for upholding it. Accordingly, expert witnesses can now be sued for negligence in respect of opinions given both pre-trial and as evidence during legal proceedings.