Intellectual Property

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Italian publishing company Arnoldo Mondadori Editore SpA has had an appeal dismissed by the General Court in opposition proceedings brought against the registration of the mark GRAZIA.  In 2008, Grazia Equity GmbH sought to register a community trade mark in respect of the word sign GRAZIA under Classes 35 and 36 of the Nice Classification (business consultancy and financial services). 

Mondadori filed an opposition based on an earlier mark for GRAZIA under Classes 3, 9, 16, 18, 25 and 38.  In rejecting the opposition, the Opposition Division of OHIM said that there was no likelihood of confusion as the goods and services concerned were not similar.  Mondadori argued before the OHIM Fourth Board of Appeal that an overall assessment of the likelihood of confusion should have been considered, such as the fact that the mark was well known to the relevant public and that Article 8(5) of the Community Trademark Regulation 207/2009 should apply.  Mondadori filed a further appeal at the General Court when that argument was rejected and unfounded.Continue Reading No confusion between GRAZIA marks

The UK Court of Appeal has upheld a decision of the UK Patent Court where Mr Justice Birss gave summary judgment in an action for a declaration of non-infringement (Nampak Plastics Europe Ltd v Alpha UK Ltd 2014 EWHC 2196 (Pat)). The case, involving rivals in the plastic milk bottle business, saw the claimant Nampak Plastics Europe Limited bringing an action against Alpla UK Limited alleging infringement of its patent for a plastic milk container (ECO1). Alpla, denying infringement, produced a modified bottle (ECO2) and brought a claim for a declaration of non-infringement under Section 71 of the 1977 Patents Act and subsequently sought summary judgment from the court, which was granted.Continue Reading UK Court of Appeal not concerned with any spilt milk

Following the referral of the High Court to the Court of Justice of the European Union (CJEU) in Schrems v Data Protection Commissioner (No.2) [2014] IEHC 351, as reported in two previous blogs, the plaintiff in that case, Max Schrems, has successfully signed up over 25,000 applicants to pursue a quasi "class action" suit against Facebook Ireland Limited in a civil case before the Commercial Court for Vienna.

The number of applicants was capped at 25,000 for practical reasons with the cap being reached within a week of its launch and as of Friday 8th August the number of applicants stood at over 45,000.Continue Reading Class action suit launched against Facebook Ireland in Austria

The ALS Association has filed two trademark applications with the US Patent and Trademark Office for "ice bucket challenge" and "ALS ice bucket challenge" for the purposes of charitable fundraising.   In recent weeks there has been a social media storm of people carrying out the challenge by pouring a bucket of iced water over their heads and making a donation to the ALS Association.

The ALS Association are claiming ownership of the phrases, despite not creating the idea. Permission from the original creators was given to the ALS Association prior to the registrations being made. Other charitable organisations …

Continue Reading Ice Bucket “Challenge”

A photo taken in 2011 of a monkey grinning for the camera recently published by Wikipedia has sparked an interesting copyright debate. Although British photographer, David Slater, didn’t technically take the picture (the monkey did!) he does maintain that the picture is his property and that Wikipedia had no right to publish it. The publication of the picture by Wikipedia has apparently cost the photographer thousands of dollars in lost earnings.

Wikipedia, the free encyclopaedia that anyone can edit, only publish photos that are in the public domain as it is "a record of human knowledge, viewpoints and summaries that already exist and are expressed elsewhere". The photographer, spent time in Indonesia, followed the monkeys and set up the shot carefully so that the monkey could press the button and capture the picture. A spokesperson for Wikipedia has commented that nobody in fact owns the copyright as it can’t belong to the monkey and it has no human author in whom copyright is vested. Continue Reading Everyone is going bananas

The High Court in Schrems v Data Protection Commissioner (No.2) [2014] IEHC 351 has granted an order joining Digital Rights Ireland (DRI) as amicus curiae to the proceedings referred to the Court of Justice of the European Union (CJEU).

As reported in my earlier blog, the High Court has asked the CJEU whether the Data Protection Commissioner (DPC) is absolutely bound by the European Commission’s decision, that the Safe Harbour regime provides adequate protection for personal data, having regard to the subsequent entry into force of Articles 7 and 8 of the …

Continue Reading High Court allows DRI to join as amicus curiae to Facebook Privacy case

In an important decision for unregistered design right holders, the Court of Justice of the European Union (the CJEU) delivered its judgment yesterday in Karen Millen Fashions Ltd v Dunnes Stores (Case C-345/13).

Background

Karen Millen Fashions, a well-known British clothing retailer, claimed infringement of their unregistered design rights in three items of clothing by Dunnes Stores, a large Irish retail chain. The Irish High Court granted relief to Karen Millen in the form of an injunction restraining Dunnes Stores from using the designs and also in damages. Dunnes Stores, although not denying that it had copied the Karen Millen designs, appealed the decision to the Irish Supreme Court on the grounds that the items of clothing did not have individual character within the meaning of Article 6 of Regulation 6/2002 (The Regulations) and further that Karen Millen Fashions Ltd were required, under the Regulations, to prove that the design had individual character.

The Irish Supreme Court in turn referred two questions to the CJEU under the preliminary reference procedure.Continue Reading CJEU rules on unregistered design rights

In McCambridge Ltd v Joseph Brennan Bakeries  [2014] IEHC 269 (27 May 2014), the High Court considered the correct approach to assessing an account of profits for passing off.  The Court held that the defendant was obliged to account to the plaintiff for such portion of its profits as were attributable to its decision to dress up the packaging of its sliced brown bread in a get up that unintentionally passed it off as the highly-regarded loaf of the plaintiff.

The Court highlighted that the purpose of an account of profits is not to punish an infringer, but to remove from the infringer any unjust enrichment through stripping out the profits attributable to the infringement.Continue Reading Guidance on assessing an account of profits for passing-off

The Court of Justice of the European Union (CJEU) has delivered its judgment in Public Relations Consultants Association Ltd (PRCA) v Newspaper Licensing Agency Ltd and Others, Case C-360/13. The CJEU confirmed that internet users who read an article on a media monitoring website do not require a copyright licence from the publisher, as it falls within an exception to copyright infringement.

The decision provides reassurance to internet users that they can view media monitoring reports online without fear of liability for copyright infringement.Continue Reading CJEU rules no copyright licence required to view online media monitoring reports

The English High court has exercised jurisdiction in relation to foreign designations of a European patent. Arnold J gave a lengthy judgment of 376 pages, for which he made no apology, in the action between Actavis and Eli Lilly (Actavis UK Ltd & Ors v Eli Lilly & Company [2014] EWHC 1511 (Pat)). While there were a significant number of issues between the parties, the validity of the patent was not contested.

Actavis, a generic pharmaceutical company, had sought declarations of non-infringement in relation to the UK, French, Italian and Spanish designations of Eli Lilly’s European patent for an anti-cancer drug. The Court, in applying English law, held that they were entitled to such declarations despite the challenge made by Eli Lilly that the English court did not have jurisdiction over the foreign designations.Continue Reading UK ruling in multi-jurisdictional patent action