The Court of Justice of the European Union (CJEU) has made an important ruling for brand owners, online marketplaces and retailers alike, in finding that Amazon is not liable for unwittingly stocking trade mark infringing goods on behalf of third party sellers.

Continue Reading E-commerce operators not liable for trade mark infringement for mere storage of infringing goods

In a recent case, the Court of Justice of the European Union (CJEU) considered whether a functional shape is precluded from copyright protection. The case was referred from the Commercial Court of Liège (Belgium) (C-833/18).

Background

The original case before the Commercial Court of Liège concerned a claim for copyright infringement brought by an English company, Brompton Bicycle Ltd (Brompton). Since 1987, Brompton has marketed and sold folding bicycles. The Brompton Bicycle, which was protected by a patent until 1999, has the distinct feature of having three different positions: (i) a folded position; (ii) an unfolded position; and (iii) a stand-by position enabling it to stay balanced on the ground.

When a South Korean company, Get2Get, started marketing a bicycle that could also be folded into the same three positions as the Brompton Bicycle, Brompton brought a claim for copyright infringement. In its defence, Get2Get claimed that the shape of the Brompton Bicycle could not be protected by copyright law because its appearance is dictated by the technical solution sought, which is to ensure that the bicycle can be folded into three different positions.


Continue Reading Is a functional shape precluded from copyright protection?

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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.


Continue Reading European Court declares Red Bull’s colour trademarks invalid

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EU consumers of online content services such as Netflix, Spotify or Sky Sports will soon be able to access their subscriptions while on holiday in or when otherwise visiting another Member State, due to the lifting of existing restrictions by a proposed new EU Regulation.

Continue Reading No Frontiers! – EU Consumers to enjoy cross-border access to online content services

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The UK has confirmed today that it intends to ratify the International Agreement on a Unified Patent Court. The Minister of State for Energy and Intellectual Property, Baroness Neville-Rolfe, reportedly made the statement at a meeting of the EU Competitive Council.

There has been much commentary on the political and legal challenges the UK would face in joining the system post-Brexit. It does remain the possibility that the UK could join the system and then be ejected, something which is most likely to be determined post-Brexit.


Continue Reading UK will say “Yes” to UPC

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The High Court in Muwema v Facebook Ireland Ltd [2016] IEHC 519 held that Facebook had no duty to remove defamatory content posted by an anonymous third party. Justice Binchy did, however, make a Norwich Pharmacal order requiring Facebook to disclose the identity and location of the person operating the page involved.


Continue Reading ISP not required to remove defamatory statements

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On 28th July 2016, the Irish Court of Appeal, in Sony Music Entertainment (Ireland) Ltd. & Ors v UPC Communications Ireland Ltd. [2016] IECA 231, confirmed that national courts have jurisdiction to grant graduated response system (GRS) injunctions against innocent intermediaries, such as ISPs, in response to alleged copyright infringement. This is the first GRS order of its kind made anywhere in the EU. 

The Court held that Article 8(3) of the Information Society Directive (2001/29/EC) (the 2001 Directive), implemented in Ireland by section 40(5A) of the Copyright and Related Rights Act 2000, provided the jurisdiction to grant such orders. Article 8(3) requires Member States to ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.


Continue Reading Court of Appeal confirms jurisdiction to order ISPs to take action against copyright infringement

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In 2013, Mr Justice Gilligan refused an injunction sought by Galway Free Range Eggs Limited restraining Hillsbrook Eggs Limited from packaging or promoting their products under the name “O’Brien’s of Galway Free Range Eggs”. The Court held that it was not satisfied that the packaging used by the defendant was likely to deceive the public but did accept that there were issues to put forward to trial.

The substantive High Court hearing was held recently before Mr Justice Tony O’Connor and one of the bigger issues before the Court was the use of survey evidence and the weight to be attached to such opinion evidence.  The Court was highly sceptical of the value of market opinions and related questionnaires and stated that in this specific case “the evidence offered on behalf of the plaintiff concerning brand confusion was tenuous and unreliable”.


Continue Reading High Court finds brand survey evidence unreliable

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Following its publication in the Official Journal of the European Union, the EU Trade Secrets Directive (2016/943)on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure will enter in to force on the 5 July 2016. Member States will have two years from this