European IP Bulletin, Issue 50

Overview


In Depth

Patents

Sufficiency—when is a product a product (Biogen v Medeva revisited)?

InH Lundbeck A/S v Generics (UK) Ltd and ors [2008] EWCA Civ 311 (10 April 2008), the Court of Appeal handed down an important judgment concerning patent sufficiency. This article reviews the Court’s decision.

Designs

Dryer spiky balls—novelty and the relevant sector

In Green Lane Products Ltd v PMS International Group plc [2008] EWCA Civ 358 (23 April 2008), the English High Court has clarified that the correct “audience” or “sector” for determining novelty in a design is the sector of the alleged prior art and not the sector for which the design was registered.

Trade Marks

Likelihood of confusion, the availability requirement and the mere embellishment defence

In Case C-102/07 Adidas AG v Marca Mode 10 April 2008 (unreported), the European Court of Justice, following a reference from the Supreme Court of the Netherlands, has found that the requirement of availability of certain signs for use by competitors is not one of the relevant factors to be taken into account in the assessment of the likelihood of confusion in trade mark cases. This ruling has effectively curtailed the so called embellishment defence—that the sign consisted of something that was perhaps a decoration and therefore not inherently distinctive— that defendants have sought to rely on in trade mark infringement cases.

Copyrights

Format shifting exception—industry response

The Music Business Group (MBG) has taken exception to how the UK Government plans to “take forward” the Gowers recommendation to introduce a private copying exception to copyright infringement that would allow consumers to format shift music for use on different devices. This article examines the MBG’s position.

E-Commerce

EU study and recommendations on the regulation of video games

The European Commission has published a Communication on the protection of consumers, in particular minors, in respect of the use of video games. This article reviews the Communication, in which the Commission has set out its expectations in respect of the video games industry and the duty of public authorities in EU Member States to improve upon existing measures protecting minors from harmful video games distributed in the European Union.

File sharing and ISP responsibility

This article examines the ongoing debate over whether to mandate internet service provider responsibility for preventing online file sharing that breaches copyright.

Unfair contract terms—National Consumer Council survey and findings

The National Consumer Council (NCC) has continued its campaign against onerous terms in IT and user licence agreements (EULAs) with the publication of its findings following a survey conducted last year into B2C software supply. The findings of the NCC are summarised in this article.