European IP Bulletin, Issue 38

Overview


In Depth

Hot Topics

Apple of the industry’s eye? Steve Jobs’ address on the DRM dilemma

Apple Inc. CEO, Steve Jobs’ open letter entitled ‘Thoughts on Music’ suggesting that record labels should sell songs online, unencumbered by Digital Rights Management (DRM), caused quite a stir within the music industry and consumer groups in Europe and USA. This letter presents potential economic/legal implications for the entertainers and the entertained.

Copyright & Technology

When exceptions confirm the rule: Google’s use of cached news items infringes copyright

In Google Inc v Copiepresse (No. 06/10.928/C – Tribunal de premiere instance de Bruxelles), the Belgian court confirmed an injunction preventing Google from including newspaper extracts on its services, on the ground that the unauthorised use of the material did not to benefit from the copyright exceptions.

Upsetting the court could upset the other party too

Breach of undertakings to the court given as part of copyright infringement settlement was held to be a breach of contract. Thus, a claim based on breach of contract is allowed as an alternative to contempt of court.

Patents

Is BlackBerry safe now?

On 7 February 2007, the English Court of Appeal handed down a decision in the case Inpro Licensing S.A.R.L. v Research In Motion UK Limited (RIM) and T-Mobile (UK) Limited  which concerned an appeal lodged by Inpro against a decision declaring its patent invalid for obviousness. It had previously been held that RIM’s “BlackBerry” computer system was “infringing” as its features fell within certain of Inpro’s patent claims which were allowable in principle.

Trademarks & Domain Names

OHIM got a lesson from playing Pointy Guitar

During the evaluation of the application, a trade mark applicant has an absolute right to be informed at every stage by the Office for Harmonisation of the Internal Market (OHIM) of the grounds which can affect their rights including an appropriate opportunity to present their case in response thereof. In Kustom Musical Amplification, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Case No. T-317/05, the Court of First Instance (Third Chamber) ruled that OHIM failed to fulfil this obligation when it merely provided internet links of the material without forwarding the hard copies to the applicant.

Naming Pharmaceutical Products: Be More Careful

On 13 February 2007, in Mundipharma AG v OHIM-Altana Pharma (Case T-256/04), the Court of First Instance clarified the assessment of likelihood of confusion in the dispute between the Community Trade Mark application of RESPICORT for goods in Class 5 against an application of RESPICUR for “ therapeutic preparation for respiratory illness” in the same class. The core implication of the case is that the CFI will be very cautious in dealing with pharmaceutical marks so as to prevent the possibility of incorrect prescriptions from health care professionals and to increase the safety of patients.

The Kitchen Company in search of the successful recipe

On 15 February 2007, the European Court of Justice gave its preliminary ruling in BVBA Management, Training en Consultancy v Benelux-Merkenbureau, defending the right of the Member States to regulate trade mark procedural matters at their discretion.

Confidentiality and Data Protection

Post-employment non-compete clauses: Are you protecting yourself?

Incorporating post-employment non-compete clauses into employment contracts is a necessity for employers today. Their importance arises from the potential harm employers can suffer if the confidential information relating to their businesses, products or services is either shared with a competitor through the recruitment of an ex-employee, or is used by the ex-employee himself. Given this background, the case of Huw John Phillip Thomas v Farr PLC [2007] EWCA Civ 118, discusses two main issues: the confidential information that can be subjected to a post-employment non-compete clause, and the reasonable time period during which such an obligation can be enforced.

Business Creativity: Copyright in Trade Disputes

The High Court handed down its decision recently in Cembrtt Blunn Ltd v Apex Roofing Services LLP & anor [2007] EWHC 111 (05.02.07) on a claim for copyright infringement and breach of confidence, made as part of a claim over faulty roofing tiles, which highlights the effective use of copyright and trade secrets law against opponents in trade disputes.

Data security-fined for failure

The decision of Financial Services Authority to impose a financial penalty on Nationwide Building Society to the tune of about £1 million comes as wake-up call for all the regulated financial services companies dealing with customer data, who should be highly cautious in the handling of data.

Injunctions and Piracy

Potter prevents piracy

The legendary author, J. K. Rowling is suing the online auction hosting service eBay, at the Delhi High Court in India, for the alleged piracy of her work ‘Harry Potter’. This action was brought by Rowling and Warner Bros (the studio responsible for the Harry Potter films) after the listing of the Harry Potter books for auction sale on ‘Baazee.com’, the previous Indian version of eBay.com.

News

  • Proposed Patent Litigation Agreement is Illegal – European Parliament
  • Gambling Act Consultation on Casino Premises Licences
  • Consumer Protection Green Paper and Consultation

Legislative News

  • Licensing Scheme for Educational Recording of Broadcasts
  • Copyright and Performances – application of protection to other countries
  • Council Regulation on international non-proprietary names (INN)
  • The Patents (Convention Countries) Order 2007 & The Designs (Convention Countries) Order 2007