Intellectual Property

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Photo of Steven Craig

On 29 July 2019, the Court of Justice of the European Union (CJEU) held​ that Red Bull’s signature blue and silver colour trademarks were invalid. This followed an earlier decision by the General Court of the European Union in 2017 which found that the graphic representation and description of the two colours were not sufficiently precise.

The threshold for successfully registering a trademark consisting of a single colour or combination of colours has been set purposefully high, in order to avoid situations where a large company is able to effectively monopolise a particular colour within a particular class of goods or services. A company seeking to register a colour trademark must demonstrate that their mark has acquired distinctiveness, and be able to describe it in a sufficiently clear and precise manner.

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Photo of Davinia Brennan

The Government has published its Legislation Programme for Spring 2019. Preparing for Brexit is the central feature of the Spring Legislation Programme (which covers the period January-March 2019). The Brexit omnibus bill, the Miscellaneous Provisions (Withdrawal of the United Kingdom from the European Union on 29 March 2019) Bill, is the primary item in the Spring Programme.

The Brexit omnibus bill comprises vital legislation across 17 elements that will need to be enacted prior to Brexit in the event of a no-deal Brexit. Part 17 of the proposed Bill will provide for amendments to the Data Protection Act 2018. While the possibility of introducing a number of Brexit-related bills was considered, the Government believes that a single, standalone bill, that contains a number of parts, is the most efficient and effective way of preparing for Brexit. In addition, the Government has stated that many of the provisions will be provided for through statutory instruments that will be ready for signing should they be required in the event of a no-deal Brexit.

While Brexit is the priority, the Government has indicated that work is continuing on other legislation across all Government departments and a number of bills that are at an advanced stage will be introduced in the coming weeks, and progressed alongside those currently on the Dáil Order Paper.

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Photo of Vladimir Rakhmanin

The new Consumer Protection Cooperation Regulation (CPC) was passed on 14 November 2017, with the goal of providing enforcement authorities with additional powers to combat unlawful online practices. The CPC will also help harmonise consumer protection law across the EU. While the CPC is sure to aid compliance, it remains to be seen how far-reaching some of the powers will become, in particular, the website-blocking power referred to below.
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Photo of Chris Stynes

On 26 July 2017 the Court of Justice of the European Union (CJEU) delivered its Opinion that the draft Passenger Name Record (PNR) Agreement between the EU and Canada is not compatible with the EU Charter of Fundamental Rights (the Charter) and may not be concluded in its current form. The Opinion follows a referral by the European Parliament to the CJEU and is the first time the Court has been requested to examine the compatibility of an international agreement with the EU Charter.
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Photo of Alison Quinn

The European Council has finalised its position on the directive setting out new rules relating to the supply of digital content and digital services, acknowledging it as a priority for the Digital Single Market. The makings of the proposed directive were initially presented by the European Commission in late 2015 as part of the move towards a connected digital single market.  On 8 June 2017, the European Council adopted its position on the scope of the proposed directive, the remedies for lack of supply and non-conformity, supplier liability and burden of proof restrictions.
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Photo of Davinia Brennan

In Aldi Stores (Ireland) Limited and Aldi GMBH & Co. KG v Dunnes Stores [2017] IECA 116, Dunnes Stores (Dunnes) succeeded in its  appeal against a High Court ruling that its 2013 comparative advertising campaign against Aldi was contrary to EC (Misleading and Comparative Advertising) Regulations, 2007 (the 2007 Regulations) and the Consumer Protection Act, 2007 (the 2007 Act).

In essence, the Court of Appeal determined that the High Court applied the wrong test.  It did not make a decision as to whether the 2013 campaign was lawful, but criticised a number of adverse findings made by the High Court.

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Photo of Davinia Brennan

In Rolf Anders Daniel Pihl v Sweden, the European Court of Human Rights (ECHR) agreed with Swedish authorities that a non-profit association was not liable for anonymous defamatory comments posted on its blog. The ECHR held that the Swedish authorities’ refusal to hold the owner of the blog liable for the anonymous defamatory online comment did not violate the European Convention on Human Rights (the Convention).
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Photo of Davinia Brennan

In Muwema v Facebook Ireland Ltd [2017] IEHC 69, the Irish High Court refused to grant a Norwich Pharmacal order against Facebook, requiring disclosure of the identity and location of an anonymous third party operating a Facebook page containing defamatory content. The Court found that if Facebook disclosed such information it would endanger the life of the third party.  The Court held that the right to a good name must give way to the right to life and bodily integrity in the event of a conflict.
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