European IP Bulletin, Issue 22


Hot Topics

1. Annual Report by the US Trade Representative on Foreign IP Protection

Section 301 of the US Trade Act of 1974 instructs the US Trade Representative (USTR) to identify territories where the rights of the US under any trade agreement are being violated. Where trading privileges exist with another territory ‘Special 301’ reviews are made of those trading partners lacking sufficient intellectual property protection such that they present a potential threat to US trade interests. Famously, the first bilateral stand off raised by the USTR on the issue of intellectual property was Indonesia. Because of raising the profile of Intellectual Property Rights as a political issue, negotiations at the World Trade Organisation resulted in the Trade Relating to Intellectual Property Rights agreement. Despite growing hostility to the use of IPRs as a political weapon, the USTR continues to target trading partners on a bilateral basis.

2. UK Labour Party’s Intellectual Property Manifesto for the Digital Age

The Labour Party have published their manifesto for the digital age.

3. Spanish Authorities to Fight Piracy: Criminal Code Reform and Successes of Police Actions

A widespread reform of the Spanish criminal code was initiated last October, which facilitated the prosecution of individuals committing criminal offences against intellectual property. The reform has been welcomed by SGAE (Sociedad General de Autores y Editores), and produced an increase in the actions by the Police to fight pirates belonging to criminal organisations. Last month Spain further strengthened its anti-piracy policies by approving a Comprehensive Intellectual Property Defence Plan.


4. France: A Step Backwards for Digital Rights Management Implementation

In the continuous battle between exclusive rights and exceptions to copyright infringement, the French Court d’Appel de Paris found against Universal Pictures Video France, who had adopted technological measures designed to impede copying from DVD to VHS format.

5. BBC Creative Licence on Archive Copyright

An online initiative by British broadcasters that will allow people to download, manipulate and share film, TV and radio archives has been launched.

6. Dutch Industry Anxious Over Proposed MP3 Tax

A proposed tax on MP3 players could become law in the Netherlands with possibly grave implications for the Dutch music industry and international copyright law.

Patents(click the header at left to view all of the Patent case notes)

7. Regulatory Data Protection for Medicinal Products: R (on the Application of Merck Sharp & Dohme Ltd) v the Licensing Authority

This case is another round of battle between the innovators who seek strong protection for regulatory data submitted for marketing authorisation of their products that are developed through years of research, development and clinical trials, and generic companies who wish to market a product by relying on such clinical trials. In this decision, the High Court had rejected an attempt by Merck to give a restricted meaning to Article 10 (1) (a) (iii) of Directive 2001/83/EC or to refer the matter to ECJ for further clarification.

8. When is a Non-EEA Marketing Authorisation an EEA Marketing Authorisation?

In recent joined cases, the European Court of Justice (ECJ) considered a lacuna in the law in respect of Supplementary Protection Certificates (SPC). SPCs are granted based on the first marketing authorisation in a European Economic Area (EEA) state. Switzerland is not a member of the EEA, therefore technically marketing authorisations granted there should not be recognised. However, questions arose due to the fact that Lichtenstein, which is a member of the EEA, recognised Swiss marketing authorisations.


9. WIPO Member States Agree Basic Text for Revised Trade Mark Law Treaty

There has been significant progress in updating the Trademark Law Treaty which aims to streamline the administrative procedures for national and regional trade mark applications and the maintenance of trade mark registrations. The World Intellectual Property Organisation Standing Committee has agreed on a text to be proposed for the Revised Trademark Law Treaty.

10. Final Rulings Adopted in WTO Geographical Indications Dispute

On 20 April 2005, the Dispute Settlement Body of the WTO adopted the Panel report on the European Communities’ protection of trade marks and geographical indications for agricultural products and foodstuffs.

11. Adidas v Marca at the Court of Appeal in The Netherlands

On 29 March 2005, a Dutch Court of Appeal delivered its judgment in Adidas v Marca. The case centres around Marca’s use of a two-stripe design on clothing, which, Adidas claims, allegedly infringes its own three-stripe emblem trade mark.


McDermott Will & Emery would like to acknowledge the invaluable contribution to the Bulletin made by Professor Michael Blakeney, Angela Adrian, Afe Komolafe, Malcolm Langley, Tina Loverdou, Maria Mercedes, James Mitchiner, Lois Muraguri, Rajesh Sagar, Pekka Valo and Daphne Zografos from the Queen Mary Intellectual Property Research Institute, University of London.