European IP Bulletin, Issue 91

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In Depth


European Working Party Provides Opinion on Exemptions to Cookie Consent
The Article 29 Data Protection Working Party has released an opinion on the exemptions to the requirement to obtain consent prior to placing small data files (cookies) on computers of website users, arising from Article 5(3) of the E-Privacy Directive (2002/58/EC, as amended by the Citizen’s Rights Directive (2009/136/EC)).


Article 5(3): Jurisdiction Should not be Allowed for Declarations of Non-Liability in Tort
In Folien Fischer AG and another v RITRAMA SpA [2012] C-133/11, Advocate General Niilo Jääskinen gave the opinion that Article 5(3) of the Brussels Regulation does not confer jurisdiction where an alleged wrongdoer brings an action for a declaration that the alleged victim has no claim in tort.

Initiative on a Clean and Open Internet
The European Commission launched on 4 June 2012 a public consultation on procedures for notifying and acting on illegal content, such as racist content, child abuse content or phishing content, hosted by online intermediaries.

Trade Marks

Changes in Economic Behaviour Not Necessary to Prove Detriment to the Distinctive Character of a Trade Mark
In Environmental Manufacturing LLP v Office of Harmonization for the Internal Market [2012] T-570/10, the Court of Justice of the European Union has held that a trade mark owner does not need to prove a change in the economic behaviour of the average consumer of the goods or services for which their mark was registered in order to show detriment to the distinctive character of the mark under Article 8(5) of the Community Trade Mark Regulation (207/2009/EC).

CJEU Rules on Use of Nice Classification Headings in Trade Mark Applications
In its ruling in Chartered Institute of Patent Attorneys v Registrar of Trade Marks [2012] C-307/10, the Court of Justice of the European Union has placed the burden on the applicant to ensure that goods and services included in a trade mark application are listed precisely and clearly enough to enable authorities and traders to determine, on the sole basis of that list, the scope of the trade mark rights.

Earlier National Trade Marks Must Have Distinctive Character in Opposition Proceedings
In Formula One Licensing v OHIM P-196/11 P, the Court of Justice of the European Union has ruled that the General Court was wrong to determine that an earlier national trade mark registration lacked distinctive character in opposition proceedings. The validity of an earlier national trade mark can only be considered in national cancellation proceedings.


Wound Dressing Patent Lives to Fight Another Day
In Smith & Nephew Plc v Convatec Technologies Inc. [2012] EWHC 1602 (Pat), the High Court of England and Wales has permitted the amendment of a patent for a method of preparing a light-stabilised form of silver as an antimicrobial material for use in wound dressings and medical devices, and held the amended patent to be valid.