UK: IP Snapshot - May 2010

Bringing you monthly news of key developments in intellectual property law

Interflora, Inc. Interflora British Unit v Marks and Spencer PLC Flowers Direct Online Limited, [2009] EWHC 1095 (Ch), 22 May 2009 /[2010] EWHC 925 (Ch), High Court, 29 April 2010

The High Court had previously referred a number questions about Google AdWords and registered trade marks to the ECJ, adding to the numerous referrals from other European courts on the same subject.

Since the ECJ's decision in the Google France cases, the ECJ had asked for clarification as to whether the High Court still sought guidance on the issues referred. The High Court agreed to withdraw all of the questions relating to the liability of Google, but the questions relating to the liability of the advertiser/competitor remain.

For the full text of the decision, click here .

Peek & Cloppenburg and van Graaf GmbH & Co KG v OHIM, Case T-361/08, The General Court, 21 April 2010

The General Court has dismissed an appeal against a decision by OHIM Board of Appeal that held that that there was no likelihood of confusion between two figurative peacock marks for clothing.

The General Court held that although there is a possibility the marks are conceptually similar; this was not enough to create a likelihood of confusion in the minds of the relevant public.

For the full text of the decision, click here .

Football Dataco Limited & Ors v Brittens Pools Ltd [2010] EWCH 841 (CH), High Court

The High Court has given an interesting ruling on the intellectual property rights subsisting in the English and Scottish football league fixture lists, finding that such lists, while not capable of protection by database right, do enjoy protection as copyright works.

To see our full Law-Now on this decision, click here .

Fundación Gala-Salvador Dalí v Société des auteurs dans les arts graphiques et plastiques (ADAGP) and others, European Court of Justice, 15 April 2010

The ECJ has held that the EU Directive on artists' resale rights does not preclude a French law providing that, on the death of the artist, the resale right will pass to the artist's heirs, to the exclusion of legatees or other successors in title.

For the full text of the decision, click here .

Schütz (UK) Ltd v (1) Werit UK Ltd (2) Protechna SA [2010] EWHC 660 (Pat), High Court, 31 March 2010

The act of replacing an inner bottle in a product where the outer cage element was patented was held not to constitute infringing by making.

The relevant test was whether or not when the part being replaced was removed, what was retained of the original product embodied the whole of the inventive concept of the patented invention. If so, the act of replacing did not constitute making of the patented product and was therefore not infringing.

The court also rejected a defence under section 44 of the Patents Act 1977, holding that a provision in the contract between licensee and patentee requiring the licensee to obtain the patented product in the form of a kit of individual parts from the patentee, rather than a whole product, was lawful and did not constitute an abuse of the patentee's monopoly, because the kit of parts only constituted the patented product, not any extra elements.

For the full text of the decision, click here .

Forensic Science Service Limited, BL O/117/10, 16 April 2010, Intellectual Property Office

The IPO has found that an invention using computer modelling to improve analysis of DNA chemical reactions was not excluded from patentability as being a mathematical method or computer program. The hearing officer overturned the examiner's decision on the basis that the examiner had made an incorrect determination of the contribution made by the invention. On reconsideration of the actual contribution made, the hearing officer found that it did not consist solely of excluded matter and made a technical contribution to the art.

For the full text of the decision, click here .

HTC Corporation v Yozmot 33 Limited [2010] EWHC 786 (Pat.), High Court, 20 April 2010

In a recent ruling, the Patents Court held that Yozmot's patent was partially invalid.

The patent in question relates to a ring tone system for mobile phones, which allows specific ring tones to be assigned to and identify specific callers. Yozmot stated that claims 5, 6 and 7 of the patent are independently valid and claimed infringement of claims 1, 2, 5 and 6 by a number of HTC phones. HTC contested the validity of the patent on the grounds of, inter alias, lack of novelty, obviousness, insufficiency, and the fact that the subject matter of the patent was unpatentable.

The Court deemed claims 1, 5 and 6 to be invalid on the grounds of lack of novelty and obviousness. The remaining allegations were considered untrue, and claim 7 was therefore deemed valid. However, the Court stated that had claims 1, 5 and 6 been valid, they would have been infringed by HTC's system.

For the full text of the decision, click here .

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 27/05/2010.

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