1 June 2023 marks a significant step forward for patent protection and enforcement in Europe with the commencement of a new unified European patent system comprising:

  1. A Unitary Patent, providing uniform protection and equal effect across all participating Member States on a one-stop-shop basis.
  1. A Unified Patent Court (UPC), offering a single, specialised patent court common to all participating Member States.

We previously reported (in 2021 and 2022) on the steps taken towards the establishment of the Unitary Patent and UPC, and the legislative hurdles that needed to be overcome for their operation to commence.

Overview of

Continue Reading A Significant Step Forward: The Unitary Patent System and Unified Patent Court Commence Operation in Participating Member States

On 1 January 2021, the Trade and Co-operation Agreement (TCA) came into force and the general principles of EU law, existing EU treaties and EU free movement rights ceased to apply in the UK, after the transition period set out in the Withdrawal Agreement ended on 31 December 2020. Under the European Union (Withdrawal) Act 2018, EU regulations only continue to apply in the UK to the extent that they have not been modified or revoked by regulations under that Act.

The TCA itself had very little impact on IP rights – it provides minimum measures for IP
Continue Reading Impact of Brexit on IP law

No doubt the famous fictional detective would have been only too happy to lend his detective skills to get to the bottom of the copyright infringement case brought by Arthur Conan Doyle’s estate against, amongst others, Netflix and the producers of the recent Netflix film, Enola Holmes. The case was dismissed in December, presumably because the parties reached a settlement, although this hasn’t been confirmed.

Background

For those who haven’t yet worked their way through all of Netflix’s recent releases, ‘Enola Holmes’ is a film based on a book by Nancy Springer, and centres around the teenage sister of the famous detective, as she goes to London in search of her mother who has disappeared.

The film was released in September 2020, but three months before that, the Conan Doyle Estate (CDE) issued legal proceedings in the USA against, amongst other defendants, Nancy Springer, Netflix and the producers of the film, for (i) copyright infringement in relation to the film’s depiction of Sherlock Holmes, and (ii) trade mark infringement in relation to the use of the ‘Holmes’ name in the film’s title.Continue Reading Sherlock Holmes and the copyright infringement claim

The purpose of copyright is to protect original artistic works, but Banksy is well-known for his view that “copyright is for losers”, which may well be linked to the fact that he would likely lose his anonymity by asserting copyright over his works. He has instead sought protection from commercialisation by third parties of his works through various trade mark registrations. However, a recent decision by the EUIPO has put an end to his trade mark registration protecting one of his most famous pieces of art.
Continue Reading Banksy loses EU trade mark due to “bad faith”

As we continue to adjust to new restrictions introduced by the government as a result of the pandemic, the world of trade marks has been business as usual.  In this blog, we discuss a recent decision relating to a high profile trade mark proprietor, Lionel Messi, who is widely regarded as one of the best footballers in the world.

The Court of Justice of the European Union (CJEU) recently dismissed appeals brought by the EUIPO and a Spanish company against the judgment of the General Court authorising Lionel Messi to register the trade mark ‘MESSi’ for sports equipment and clothing. The CJEU held that there is no likelihood of confusion between the word mark MASSI and a figurative sign containing the word MESSi.Continue Reading No likelihood of confusion between MASSI and MESSi

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?

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

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

In an earlier blog, we outlined that the UK confirmed its intention to ratify the International Agreement on a Unified Patent Court. In December 2016, the UK government proceeded to sign the Protocol on Privileges and Immunities of the Unified Patent Court.  The Protocol provides EU privileges and immunities to the judges of the Unified Patent Court necessary for the exercise of its functions.  The Protocol is required in the individual countries hosting divisions of the court, one of which is in London.  This positive step would suggest that the UK is moving closer towards ratification.
Continue Reading UK closer to UPC ratification