European IP Bulletin, Issue 64

Overview


In Depth

ADVERTISING & MARKETING

Misleading Advertising and Pricing

The UK’s Office of Fair Trading has announced two separate marketing studies into advertising and pricing. The announcement follows the OFT’s call for comments in August 2009 regarding the possibility of investigating these areas.

INTELLECTUAL PROPERTY

Unlawful P2P File Sharing: Suspension of Accounts?

The UK’s Department for Business, Innovation and Skills has extended its Consultation on legislation to address illicit peer-to-peer (P2P) file sharing in order to gather views on whether there should be added to the list of such measures the power to block an individual’s access to the internet.

COMMUNICATIONS AND NEW MEDIA

Digital Britain: Government’s DeliveryProgramme

The UK Department for Culture Media and Sport and the Department for Business, Innovation and Skills have published the Digital Britain: Implementation Plan, setting out the Government’s programme for the delivery of the proposals contained in the Digital Britain: Final Report.

Keywords, Sponsored Links and Trade Mark Infringement

In a combined reference for a preliminary ruling from the Cour de Cassation in France, Advocate General Maduro advised the European Court of Justice to rule that search engines selling keywords to advertisers cannot be liable for trade mark infringement

E-COMMERCE, IT & BANKING TECHNOLOGY

Financial Promotions: Misleading Keywords

In its Guidance on Online Sponsored Links published jointly with the Office of Fair Trading, the Financial Services Authority states that firms should not buy up keywords from search engines like Google in the name of other firms and competitors.

Vertical Restraints: Online Sales and Selective Distribution

The European Commission has launched a public consultation on its proposal for a revised Regulation to replace the current Vertical Restraints Block Exemption (2970/1999/EC), which is due to expire in May 2010.

Representations on Websites: Duty of Care

In Gary Patchett v Swimming Pool & Allied Trades Association Ltd [2009] EWCA Civ 717, the Claimants sued the Defendant for negligence, relying upon paragraphs 1 and 6 on the “about us” page of the Defendant’s website.

COUNTERFEITING & PIRACY

Goods in Transit: When are Fake Goods not Counterfeits?

In Nokia Corporation v Her Majesty’s Commissioners of Revenue and Customs [2009] EWHC 1903 (Ch), it was held that allegedly counterfeit goods that are in transit through the European Union could not be seized as long as the goods were not destined for the EU market.

Non-Infringing Goods: Entitlement to Damages on Cross-Undertakings

In Lilly Icos LLC v 8PM Chemists Ltd [2009] EWHC 1905 (Ch), it was held that the Defendant was not precluded by the principle of illegality from recovering compensation under cross-undertakings given by the Claimants, which had obtained interim injunctions in trade mark infringement actions that were subsequently found to be unjustified.

TRADE MARKS

You Can’t Be A Virgin All Your Life…

In BL O-216-09 Bodtrade 54 (Pty) Ltd (Virgin Enterprises Ltd’s opposition), it was found that there was little similarity and no likelihood of confusion between the phrase YOU CAN’T BE A VIRGIN ALL YOUR LIFE ITS TIME and the widely-recognised VIRGIN marks owned by Virgin Enterprises Ltd.

PATENTS

Costs: Indemnity Basis

In Edwards Lifesciences AG v Cook Biotech Inc. [2009] EWHC 1443, Mr Justice Kitchin refused to award costs on an indemnity basis even though the Patentee’s conduct escalated the Claimant’s costs.

Online Gambling System – Obviousness and the Principle of Implicit Disclosure

In Cranway Ltd v Playtech Ltd [2009] EWHC 1588 (Pat), it was held that claim 1 was anticipated by the prior art, that the relevant claims of the patent were obvious and that the invention fell within excluded subject matter by virtue of it being a computer program as such and business method.

DATA PROTECTION

Loss of Laptops Containing Personal Data – Remedial Action and Undertakings

Repair Management Services Ltd, a trade body that advises vehicle repair businesses and UPS, the transportation and logistics business, have signed undertakings publicly in relation to protection of personal data following the loss of data by those companies. Consequently, it was not necessary for the Information Commissioner to serve Enforcement Notices on the companies under the Data Protection Act 1998.