Nexus: #AroundtheIPBlogs

Around the IP Blogs

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A lot certainly happened last week! With articles on topics including AI, trade mark infringement, (*whispers* and Brexit), let's take a trip around the IP blogosphere.

Trade Marks

In a post on the JIPLP blog, Carina Gommers and Eva de Pauw provided a preview of their article on liability for trade mark infringement of online marketplaces in Europe, considering the extent to which they can be held liable, and the possibility of injunctions in light of Article 14 and 15 of the Enforcement Directive and recent (and upcoming) CJEU case law.

The Kluwer Trademark Blog took a look at trade mark case T-40/19, Amigüitos pets & live v EUIPO, where the General Court denied that a likelihood of confusion could be found between 'THE ONLY ONE' and 'ONE' (held by Purina) in relation to pet care products and food. This finding was contrary to the earlier decision of the EUIPO Fourth Board of Appeal.

The Kluwer Trademark Blog also examined the importance of obtaining a word mark registration for weak trade marks. This was in relation to a case in Denmark, a country which has in the past been described as the easiest place in Europe to obtain a right to a trade mark solely on the basis of use.

Patents

Artificial Intelligence (AI) is one of the go-to topics nowadays for IP aficionados, and earlier last week, the EPO contributed to that discussion, publishing its grounds for its decision to refuse the two patent applications which had named an AI system as its inventor. You can find further information provided here.

On the topic of AI, IPWatchdog looked at the marked increase in the number of patents granted by the USPTO, which mentioned AI and machine learning.

The Patent Lawyer Magazine reported on the status of proceedings between Nintendo and iLife Technologies Inc, arisen over claims that Nintendo had infringed the motion-control patents held by iLife through its Wii remote. In a decision of a US Federal Court in Dallas, the previous patent verdict was overturned in favour of Nintendo.

Keyword Advertising

The Kluwer Trademark Blog also reported on a decision of the High Court of Frankfurt on keyword advertising, in which the outcome appeared to be the opposite of the Interflora case (C-323/09). The case involved the use of a trade mark for a plaintiff in orthodontics, with the High Court ultimately granting an injunction to the plaintiff.

Brexit

In light of the UK's exit from the European Union on 31 January 2020, the Meyer-Dulheuer MD blog examined the implications of the extension of the transitional period for the automated conversion of registered trade marks and designs of the European Union into compatible UK trade marks. The transitional period has now been extended until 31 December 2020.

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The IPKat once again has selected blogposts that contribute to the discussions on IP thought and practice.

Copyright

In the Kluwer Copyright Blog, Christian Czychowski and Viktoria Kraetzig offer their insights on two judgments given by the CJEU, in Funke Medien (C-469/17) and Spiegel Online GmbH (C-516/17), respectively (here, here). The issue in both cases is whether copyright could be a right of censorship.

The SpicyIP blog published Karan Dhalla's post that analyses the judgment rendered by the Bombay High Court in Tips v. Wynk. The court held that the statutory licensing scheme under Section 31D of the Copyright Act in India does not apply to internet broadcasting

The Kat searched for the posts

Patent

In the EPlaw Patent blog, Pierre Véron reports on the appeal decision in the Mermet v. Chavanoz industrie case in France. The first instance court had awarded the plaintiff the largest ever amount in Europe for damages in a patent infringement case (€25,000,000). The court of appeal overturned this decision on the ground that the patent is invalid due to lack of novelty - Chavanoz had sold the patented product before the priority date of the patent.

In IPwatchdog blog, Gene Quinn criticizes the claim made by the R Street Institute that patents are too strong and are inhibiting American companies in the race for leadership in the 5G marketplace and continued leadership in Artificial Intelligence (AI), this due to assertion by the Chinese telecommunications company, Huawei, of more than 200 patents against Verizon Communications earlier this year. Quinn argues that there may be legitimate security concerns around Huawei’s infrastructure, but to suggest that the company's patents are at the root of these threats is in a word—Absurd!

Trademark and GI

Jeffrey H. Brochin, in Kluwer Trademark blog, reports the decision of the US Court of Appeals for the Federal Circuit in Cervejaria Petropolis SA v. Ambev S.A case. The court held that single instance of display of a trademark on race car and jumpsuit did not establish intent to use the mark for the registered product.

In the IPTango blog, Patricia Covarrubia reports the decision of the Peruvian Ministry of External Relations to appeal to the ruling of the Court of First Instance of Thailand against the registration of a Chilean association that intends to use the term “Pisco". “Pisco” is a grape brandy produced in Chile and Peru.

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Here are some recent highlights from around the IP blogosphere:

1709 blog: Andy Warhol Foundation Asks SDNY to Declare Prince Series Not Infringing

The Andy Warhol Foundation for the Visual Arts filed a suit against photographer Lynn Goldsmith; the suit asks the Southern District of New York Court (SDNY) to declare that the Andy Warhol Prince Series did not infringe on Defendant’s copyright, that the portraits in the series are transformative works protected by fair use, and that Defendant’s claim is barred by the equitable doctrine of laches. The case is The Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith and Lynn Goldsmith, Ltd. Marie-Andree Weiss considers the claim and the Fair Use Factors.

Are my stripes distinctive?

Marques class46: The three-striped saga continues

The European Union Intellectual Property Office (EUIPO) found that the European Union Trade Mark “three-striped marks", owned by the German sportswear manufacturer Adidas AG, did not enable consumers to identify clothing items as originating from a particular producer. Adidas AG also failed with its claim that the three-striped mark had acquired distinctiveness through use based despite the 12,000 pages of evidence. Class 46 Blog discusses some of the observations made by the EUIPO concerning the consumer's perception of the Contested Mark.

JIPLP: Current Intelligence - The scope of protection of Lacoste's trade mark in Turkey
JIPLP’s latest Current Intelligence covers the case of Lacoste’s registration of a ‘Crocodile’ trade mark for goods in classes 11, 20 and 21 which was rejected by the Turkish Court of Cassation. In this matter, the court provided detailed criteria to assess the scope of protection of a well-known trade mark in relation to goods and services different from those for which the trade mark is registered.

The SPC Blog: Darunavir and the interpretation of Article 3(a) by Mr Justice Arnold
Over on the SPC blog, Catherine discusses Mr Justice Arnold’s decision (here, [2017] EWHC 987 (Pat)) relating to the validity of Searle’s supplementary protection certificate (SPC) to darunavir in light of Article 3(a) of the SPC Regulation.

Michael Geist: PBO Concludes CETA Patent Rules Will Lead To Outflow of Hundreds of Millions in Pharma Royalties
The Canadian Parliamentary Budget Officer released a report last week providing its estimate on the economic impact of the Canada - EU Trade Agreement. Michael Geist gives a summary and over view of the report.

EPLaw: NL – Sun V. Novartis / Supreme Court
EP Law updates us on a recent case in the Supreme Court of the Netherlands - Sun Pharmaceutical Industries (Europe) B.V. v. Novartis AG. The matter involved a claim for use of zoledronic acid in the preparation of a medicament for the treatment of osteoporosis, owned by Novartis. However, Sun Pharmaceutical markets a zoledronic acid product with a carve-out for osteoporosis, but had entered a tender for the insurance company VGZ which did not distinguish between indications for the product. Novartis instituted proceedings for indirect infringement and the Court of Appeal held that, other than the first instance preliminary relief judge, and other than the English High Court and Court of Appeal, the patent was entitled to its priority claim.

Photo: Helena Jacoba

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What’s going on around the IP blogosphere of late:

It's time for Africa!

USA: Fox Television Stations, Inc. v. AereoKiller, LLC, United States Court of Appeals, Ninth Circuit, No. 15-56420, 21 March 2017

Kluwer Copyright Blog updates on the ruling that reversed the decision of the U.S. Court of Appeals in San Francisco which found FilmOn X, LLC, to be a “cable system” that was eligible for compulsory licenses under the Copyright Act. The court held that a service that captures copyrighted works broadcast over the air, and then retransmits them to paying subscribers over the Internet without the consent of the copyright holders, is not a “cable system” eligible for a compulsory license.

.Africa Arrives Today - Own The Continent

Afro-IP announces the sunrise period of .Africa in which trademark owners can secure domain names matching their registered trademarks before the new dotAfrica generic Top Level Domain (gTLD) is launched to the public on the 4^th July 2017.

Preparing for the Unified/Unitary Patent

SOLO IP keeps us in the loop on all things related to the "European Patent with Unitary Effect" otherwise known as a Unitary Patent (UP) such as several upcoming events ( e.g. CIPA webinars and AIPPI panel debate), their main concerns and where to go to keep up to date on the process ( BristowsUPC and the official Unified Patent Court site).

UB3: Uber's New Patent Purchase Program

Talking of patents, on IP Finance, Uber has launched a patent purchase program called, UB3. Uber’s press release explains the benefits of the program: “Sellers will submit patent family details and a price they are willing to accept directly into our submission portal. By eliminating price negotiations and providing quick reviews, UP3 will reduce the total transaction time compared to a typical patent transaction.”

Riding on the coat-tails of Pandora – what is acceptable in Denmark?

Kluwer Trade Mark blog informs us of a recent case before the Maritime and Commercial High Court in which jewellery chain Pandora sued a former business partner, Mr Nielsen, and his company for unlawful use of the trademark PANDORA. The court found in favour of Pandora, stating that Nielsen and his company had taking unfair advantage of their reputation and continuously infringed their trade mark. The court therefore ordered compensation and damages for a grand total of DKK 50,000 (Euro 6,700)…

CopyKat

Over on the 1709 blog is the latest copykat updatewhich includes an insight to the potential mismanagement of the US Copyright Office, the use of the “Soft Kitty” song in TV show The Big Bang Theory, and Collecting Societies working together to create a new system using blockchain technology.

Glass half-empty for Jagermeister

CLASS 99 (Designs) discusses the recent Case T-16/16 Mast-Jägermeister v EUIPO (beakers), in which Jagermeister’s design containing a picture of a beaker, with a bottle also present, was rejected as the bottles and beakers fell into different classes. After some seemingly unsuccessful back-and-forth, the Examiner withheld a filing date until the satisfactory representations were filed. Jagermeister argued that there should only be an issue where the design cannot be clearly seen in the representations as filed, not when you can clearly see one or more but can't tell precisely which is claimed. However, the court disagreed, stating that the design must be of a quality permitting all the details of the matter for which protection is sought to be clearly distinguished.

Photo credit: Steven Tan

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Getting on board with the fleeeexible approach!

Fairness Confirmed Again: Federal Court of Appeal Upholds Copyright Board’s Fair Dealing Ruling

Michael Geist updates us on the Canadian Federal Court of Appeal decision in the judicial review of the Copyright Board’s ruling involving copying in Canadian K-12 schools, which continues in the direction of adopted a flexible approach to fair dealing.

Photographs can fall within the press exception says Serbian Appeal Court

The Appeal Court of Serbia concluded that a photograph, protected by copyright, taken a few minutes after a car accident where seven people were injured was an integral part of the current event about which the public was being informed. As such, re-use of the photo was allowed since. Bojana Kostic on the Kluwer copyright blog considers the decision and how the CJEU would approach the same issue.

International comity ... or triple error?

The 1709 Blog provided a commentary by Professor Jørgen Blomqvist from the University of Copenhagen on the proposed Directive on copyright in the Digital Single Market and its provisions on out-of-commerce works.

General Court: A decision to drink to!
MARQUES Class 46 (trade marks) covered Case T-250/15, Speciality Drinks Ltd v EUIPO (24 November 2016), where the EU General Court upheld the decision of the Board of Appeal which found that there was a likelihood of confusion between the word mark CLAN and the earlier mark CLAN MACGREGOR under Article 8(1)(b) of the EU Trade Mark Regulation (207/2009/EC).

Trump's Nomination of Neil Gorsuch and Intellectual Property

The impact of Neil Gorsuch’s appointment on IP has caused much speculation and some have reported that there isn’t have enough information, IP Finance considers the Congressional Research Service initial report where Judge Gorsuch gave his views on executive power and administrative law.

Hague Guide for Users: new revision now available

MARQUES Class 99 (designs) reports that the Hague Guide for Users is a comprehensive reference document on the entire Hague System available on the WIPO website.

Photo credit: rongorongo

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Around the IP Blogs

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