European IP Bulletin, Issue 94

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In Depth


CJEU Maintains Prohibition on Representation by In-House Lawyers before the European Courts
In joined cases C-422/11 P and C-423/11 P, Prezes Urzędu Komunikacji Elektronicznej v Commission, the Court of Justice of the European Union (CJEU) has affirmed its previous view that inhouse lawyers are not entitled to represent their employers before the European courts.


Patents County Court Offers New Interpretation of Moral Rights
In Emma Delves-Broughton v House of Harlot [2012] EWPCC 29, the Patents County Court held that alterations made to a photograph amounted to a derogatory treatment of the work and, therefore, infringed the claimant’s moral copyright under Section 80 of the Copyrights, Designs and Patents Act 1988 (the CDPA).


CJEU Offers Partial Clarification as to Governing Jurisdiction for Sui Generis Right
A decision has been reached by the Court of Justice of the European Union (CJEU) regarding Football Dataco Ltd and Others v Sportradar GmbH and Another 173/11 referred from the Court of Appeal in respect of a request for interpretation of Article 7 of Directive 96/9/EC on the Legal Protection of Databases (the Directive). The reference concerned the alleged infringement by Sportradar of a sui generis right in a database owned by Football Dataco.

Data Protection

Cloud Computing: Practical Guidance From The Information Commissioner’s Office
The Information Commissioner’s Office (ICO) recently published practical guidance on the use of cloud computing for businesses. With increasing numbers of organisations moving to the cloud, the guidance serves as a reminder to companies that they remain responsible for personal data, even when it is passed to cloud network providers, by highlighting the potential risks and setting out steps to follow when selecting a cloud provider.


Amended Draft Agreement on The European Unified Patent Court Remains Controversial
The Presidency of the Council of the European Union published on 28 September 2012 the new draft of the Unified Patent Court (UPC) agreement. The draft incorporates elements agreed at the December 2011 Competitiveness Council and the June 2012 European Council meeting, but controversial issues remain.

Court of Appeal of England and Wales Re-Examination of Neutrokine-α Patent Establishes Validity of Claims
Following the decision of the Supreme Court of England and Wales that Human Genome Sciences Inc’s (HGS) patent for Neutrokine-α was not invalid for lack of industrial applicability, the Court of Appeal has decided the remaining validity issues in relation to three claims. It upheld the first instance decision that one of these claims was valid, and reversed the finding that the other two were insufficient.

Trade Marks

EU General Court Confirms Likelihood of Confusion Between BÜRGERBRÄU and BÜRGER
The EU General Court (GC), in Scandic Distilleries SA v OHIM, [2012] T-460/11, has upheld a decision from the Board of Appeal of the Office of Harmonization for the Internal Market (OHIM) confirming that there was a likelihood of confusion between a figurative mark for BÜRGER and an earlier Community trade mark (CTM) registration for the word mark BÜRGERBRÄU, both registered in respect of “beers” in Class 32.

High Court Confirms Cadbury’s Purple Trade Mark
In Société Des Produits Nestlé S.A. v Cadbury UK Ltd [2012] EWHC 2637, the High Court of England and Wales has dismissed attempts by Nestlé to prevent the registration by Cadbury of the colour purple for various forms of milk chocolate.

Court of Appeal of England and Wales Provides Guidance on Approaching Applications for Stay of Infringement Proceedings
The Court of Appeal has upheld two decisions from the Board of Appeal of the Office of Harmonization for the Internal Market (OHIM) (Starbucks (UK) Ltd v British Sky Broadcasting Group plc and othersEMI (IP) Ltd and others v British Sky Broadcasting Group plc and another [2012] EWCA Civ 1201), concerning applications for stay of Community trade mark (CTM) infringement proceedings and parallel invalidity actions before OHIM. This provides guidance on the approach a CTM court should take when facing an application for stay of proceedings under Article 104(1) of CTM Regulation 207/2009/EC (CTMR).