European IP Bulletin, Issue 92

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In Depth

Trade Marks

CJEU Dismisses Appeal Relating to Application to Register a Slogan as a Trade Mark
In Smart Technologies ULC v Office for Harmonisation in the Internal Market [2012] C-311/11 P, the Court of Justice of the European Union (CJEU) has dismissed an appeal against a decision by the EU General Court that upheld a finding by the Board of Appeal of the Office For Harmonization for the Internal Market that the slogan WIR MACHEN DAS BESONDERE EINFACH (German for “we make special (things) simple”) was devoid of distinctive character in respect of various computer-related goods.

Advocate General Gives Opinion on “Genuine Use” of a Community Trade Mark
Advocate General Sharpston delivered her opinion in Leno Merken BV v Hagelkruis Beheer BV C‑149/11 on 5 July 2012. The preliminary reference from the Dutch courts, better known as the ONEL/OMEL reference, sought clarification on the extent to which a Community trade mark (CTM) must be used in the Community for that use to be considered genuine use under Article 15(1) of the CTM Regulation.


Apple Smart Phone Patents Found Invalid by High Court of England and Wales
In HTC Europe Ltd and another v Apple Corporation [2012] EWHC 1789 (Pat), on 4 July the High Court of England and Wales declared three Apple patents to be invalid: two patents cover aspects of touch-screen technology, including the “swipe to unlock” feature, and the third provides the ability to change languages for text messages. If they had been valid, they would have been infringed by the mobile phones produced by HTC. A fourth patent, which relates to manipulation of photographs on the screen by gestures, was held to be valid but not infringed.

European Parliament Vote on EU Unitary Patent Law Postponed
The European Parliament has postponed a planned vote on the unitary patent law it drafted jointly with the European Council. The delay has occurred because the Council made certain amendments to the proposed text of the draft law to limit the role of the Court of Justice of the European Union.

Multiple Sclerosis Drug Patent Survives Lack of Technical Contribution and Ambiguity Attacks
After a 13 day trial, featuring 11 expert witnesses, the validity of Yeda’s glatiramer acetate patent has been upheld by Mr Justice Arnold in Generics (t/a Mylan) v Yeda and Teva [2012] EWHC 1848 (Pat). This case considered interesting issues relating to the clarity of drafting patent specifications and reliance upon post-published evidence in proceedings.

CJEU Clarification on Granting Interim Cross-Border Injunctions in Patent Cases
The Court of Justice of the European Union (CJEU) has ruled in Solvay SA v Honeywell Fluorine Products Europe BV C 616/10 that the practice of granting cross-border injunctions in preliminary proceedings involving European patents where co-defendants are accused of the same infringement is not prohibited by rules on exclusive jurisdiction.

Data Protection

Article 29 Working Party Issues Opinion on Cloud Computing
The Article 29 Working Party on 1 July 2012 adopted Opinion 05/2012 on cloud computing (WP 196) in which it reviewed the rights and obligations placed on various parties when processing personal data in the cloud. The Opinion considers the applicable principles for both controllers and processors from the Data Protection Directive (95/46/EC) and the e-Privacy Directive (2002/58/EC as amended).


CJEU Confirms That Resale and Use of Used Software is Permissible Under European Copyright Law
In Luxembourg on 3 July 2012, the Court of Justice of the European Union (CJEU) held that the resale and use of used software is permissible under European copyright law. The CJEU found that, under the first sale doctrine, which is part of the Computer Program Directive (Council Directive 91/250/EEC on the Legal Protection of Computer Programs), there is no difference between physical copies on a data carrier and digital copies distributed online. As the legitimate owner of the digital copy, a purchaser of used software is even allowed to download updates from the software vendor’s website.