European IP Bulletin, Issue 7

Overview


HOT TOPICS 

1. SPAM AND COOKIES – NEW UK PRIVACY LEGISLATION

On 11 December the Privacy and Electronic Communications Regulations came into force in the UK. Rohan Massey, an Associate in McDermott Will & Emery’s London office reviews the implications of the new legislation.

2. WHEN IS AN EXCLUSIVE LICENCE NOT AN EXCLUSIVE LICENCE?

A recent case highlights the fact that parties to an agreement must not only use the correct wording and precise drafting to achieve their commercial objectives, but also to construct other aspects of the agreement in accordance with those objectives.

3. FADE – THE BRIGHT COPY-PROTECTION SYSTEM

FADE is a unique PC-based piracy protection system that can degrade illegally copied games. Counterfeited copies of games protected by the system work properly at first but start to fall apart after the player has had enough time to get hooked, actually encouraging people to buy the genuine software.


 COPYRIGHT

4. BELGIUM FOUND IN BREACH OF EU COPYRIGHT OBLIGATIONS

The ECJ has found that Belgium was in breach of its obligation to implement the Directive on rental right and lending rights by failing to provide for the remuneration of authors whose works were exempted by national law from the public lending right.

5. “1860” BRICK STRUCTURE: ABUSE OF DOMINANCE OR LEGITIMATE IPR REFUSAL?

A ruling in the case of IMS v NDC is expected from the ECJ which will establish the legal principles relating to the circumstances in which refusal by a dominant company to license its assets can be justified on the grounds of Intellectual Property Rights protection. The decision in this case is likely to have major ramifications both for dominant companies, as owners of IPR protected assets, and the competition in common market.

6. P2P UNITED LAUNCH MEMBER CODE OF CONDUCT

P2P United has launched a code of conduct in September 2003 to encourage responsible behaviour among their users.


 PATENTS 

7. PATENT LITIGATION – A JOB FOR THE PROFESSIONALS

Cintec International Ltd v Parkes & Anr provides a fine illustration of the perils of representing one’s self in the highly complex world of a patent infringement lawsuit.


TRADE MARKS

8. ADIDAS SOLOMAN AG V FITNESS TRADING LTD ECJ CASE C-408/01

A case concerning the limits of trade mark protection, and where it impinges on embellishment or commonplace design features which have to be open to everyone.

9. OHIM V WM WRIGLEY COMPANY (DOUBLEMINT), ECJ CASE C-191/01P

The issue in this case relates to one of the tests to be applied in deciding whether a work mark is capable of distinguishing the goods of one undertaking from those of other undertakings. This is the fundamental test for registrability of a trade mark under EU law.

10. PROPOSAL TO AMEND THE CTM REGULATION

On 23 September, changes to European Union trademark legislation were approved by the European Parliament.

11. CFI PROVIDES RESTITUTIO IN INTEGRUM GUIDANCE

In Classen Holding v OHMI – International Paper Company the CFI considered the date from which the time limit for a restitutio in integrum claim runs and the method by which such a claim must be made.

12. KIK’S “EQUALITY OF COMMUNITY LANGUAGES” PRINCIPLE REJECTED BY ECJ

In Kik v OHIM, the ECJ held that an Applicant while filing an application for Community TM under Regulation 40/94 does not automatically enjoy a right to participate before the Office in the same language used for filing application, and shall as a procedure formality indicate a second language, if the language of application is different from the official language of OHIM.