COPYRIGHT
Bezpečnostní softwarová asociace
– Svaz softwarové ochrany v Ministerstvo kultury,
Case C-393/09
Following a reference from the Czech Regional Court, the ECJ has
ruled that a graphic user interface (GUI) cannot be protected by
copyright as a computer program under Directive 91/250/EEC.
However, they did emphasise that a GUI can be protected by
copyright, as a work, under Directive 2001/29/EC if that interface
is its author's own intellectual creation. In response to the
second question put to it, the ECJ held that a television
broadcasting of a GUI does not constitute communication to the
public of a work protected by copyright within the meaning of
Article 3(1) of Directive 2001/29.
For the full text of the decision, click here.
MGN Ltd and others v Grisbrook [2010] EWCA Civ 1399
The Court of Appeal has upheld the High Court's decision that a licence from a freelance photographer who provided photographs to the Daily Mirror did not cover commercial exploitation of archive websites containing back copies of the Daily Mirror. Such a term could not be implied in the licence since, at the time the licence was granted, online exploitation was not in the joint contemplation of the parties.
For our full Law-Now on this decision, click here.
For the full text of the decision, click here.
TRADE MARKS/PASSING OFF
Chocoladefabriken Lindt & Sprüngli AG v OHIM
(T-336/08, T-337/08, T-346/08 and T-395/08); August Storck KG v
OHIM (T-13/09)
The General Court of the European Union upheld OHIM's
decision not to register the shapes of a chocolate rabbit,
reindeer, bell or block featuring a mouse as Community trade marks
on the basis that these signs are devoid of distinctive
character.
Full the full texts of the following cases: Chocoladefabriken Lindt
& Sprüngli AG v OHIM, Cases
T-336/08,
T-337/08,
T-346/08 and
T-395/08; August Storck KG v OHIM Case
T-13/09 (French-language versions).
L'Oreal SA and others v eBay ([2009)] EWHC 1094
(C-324/09)
The Advocate General has delivered his opinion on questions
referred to the ECJ by the High Court in L'Oreal v
eBay. The questions concerned: (1) the liability of
marketplace website operators (such as eBay) for the offer/sale of
cosmetic samples, unboxed branded products, and non-EEA-sourced
branded product on their websites; (2) the use of third party trade
marks in sponsored links and offers for sale; (3) the applicability
of the exemptions in the E-Commerce Directive to marketplace
website operators; and (4) the scope of national courts for issuing
injunctions against website operators such as eBay.
If the ECJ follows the Advocate General's opinion the outcome
would be welcomed by the operators of online marketplace websites
as it recommends that such operators should not generally be liable
for trade mark infringements committed by users of their
websites. The Advocate General also recommended that such
operators should be able to monitor content that is posted on their
sites, and offer guidance without exposing the operator to
potential liability for infringing content that they are
unknowingly hosting.
For our full Law-Now on this decision, click here.
For the full text of the decision, click here.
Cowshed Products Limited v (1) Island Origins Limited, (2) Patrick O'Conner and (3) Bianca O'Conner, High Court
HHJ Birss, sitting in the High Court, has refused to order an
interim injunction in favour of Cowshed Products, owners of a range
of trade marks consisting of and including the word COW for beauty
products, to restrain the activities of Cowshed's former web
designers, who were launching a range of beauty products under the
name "The Jersey Cow Company". The judge held that
although both sides were at risk of suffering unquantifiable damage
if the decision went against them, the effects of such damage on
the claimant would be small, whilst the effect on the defendant
would probably be to put them out of business. He therefore
ordered a speedy trial in preference to an interim
injunction.
For the full text of the decision,
click here.
Longevity Health Products Inc. v OHIM, General Court, Case
T-363/09
Registration of the trade mark RESVEROL for pharmaceutical products
was prevented by the owner of the existing mark LESTEROL which was
registered for a subset of pharmaceutical products. Bearing
in mind the "average" degree of similarity between the
marks and the identical nature of the goods there was a likelihood
of confusion.
For the full text of the decision,
click here.
Novartis AG v OHIM, General Court, Case T-331/09
Novartis failed in its opposition to an application for TOLPOSAN
based on its earlier registered mark TONOPAN. While
there was average similarity between the signs, there was only
slight similarity between the goods, despite both being medicines
in Class 5.
For the full text of the decision,
click here.
ICB forced to change the name of Vodkat
Following a long-running legal battle between Diageo and
Intercontinental Brands ("ICB"), ICB have agreed to
change the name of its vodka-based alcoholic drink, Vodkat. ICB
will also pay Diageo an undisclosed but substantial sum in damages
and legal costs.
The name change, as part of a settlement agreement reached last
month, follows a decision by the Court of Appeal, upholding the
High Court's judgment that Vodkat was being unlawfully passed
off as vodka. The Court found that there was goodwill in the term
'vodka' meaning that vodka now joins the list of products
(including champagne and Advocaat) which enjoy protection under the
extended form of passing off.
For our full Law-Now on this development,
click here.
The full judgment in the High Court and Court of Appeal decisions can be found here and here respectively.
DATABASE RIGHTS
Football Dataco Ltd & others v YAHOO! UK Ltd, Court of Appeal
The High Court found that football fixture lists were not protectable under database right law. However, it found that such lists could be protected by copyright which applies to databases as copyright works in themselves, if such databases, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation. The Court of Appeal considered that the ECJ's position on database right law was clear, so refused to refer any questions on this. They did, however, refer the following questions: (1) In Article 3(1) of the Directive, what is meant by "databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation"? (2) Does the Directive preclude national rights in the nature of copyright in databases other than those provided for by the Directive?
For the full text of the decision, click here.
PATENTS
Unilever plc and others v Shanks [2010] EWCA Civ
1283
The Court of Appeal has held that the provisions of section 41(2)
of the Patents Act 1977, relating to employee-inventor compensation
when the invention has been assigned to a person/company connected
with the employer, have to be looked at in relation to the actual
benefits from the invention gained by that assignee.
The court overruled the decision of the High Court that held that
the value of the benefit should be assessed on the basis of a
hypothetical transfer to a non-connected, arm's-length
person/company operating in the appropriate market at the
appropriate time.
For the full text of the decision,
click here.
Bayer Cropscience KK v Charles River Laboratories, Scottish
Court of Session
The Scottish Court of Session has ruled that where a product had
been imported, tested and authorisation had been obtained in an
infringing manner before the patent had expired, a patentee is
entitled to an account of profits made on authorised products sold
after the patent has expired.
For the full text of the decision,
click here.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 24/01/2011.