UK: IP Snapshot

Last Updated: 25 January 2011
Article by Nick Beckett, Isabel Davies and Tom Scourfield

COPYRIGHT

Bezpečnostní softwarová asociace – Svaz softwarové ochrany v Ministerstvo kultury, Case C-393/09

Following a reference from the Czech Regional Court, the ECJ has ruled that a graphic user interface (GUI) cannot be protected by copyright as a computer program under Directive 91/250/EEC. However, they did emphasise that a GUI can be protected by copyright, as a work, under Directive 2001/29/EC if that interface is its author's own intellectual creation. In response to the second question put to it, the ECJ held that a television broadcasting of a GUI does not constitute communication to the public of a work protected by copyright within the meaning of Article 3(1) of Directive 2001/29.

For the full text of the decision, click here.

MGN Ltd and others v Grisbrook [2010] EWCA Civ 1399

The Court of Appeal has upheld the High Court's decision that a licence from a freelance photographer who provided photographs to the Daily Mirror did not cover commercial exploitation of archive websites containing back copies of the Daily Mirror.  Such a term could not be implied in the licence since, at the time the licence was granted, online exploitation was not in the joint contemplation of the parties.

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

For the full text of the decision, click here.

TRADE MARKS/PASSING OFF

Chocoladefabriken Lindt & Sprüngli AG v OHIM (T-336/08, T-337/08, T-346/08 and T-395/08); August Storck KG v OHIM (T-13/09)

The General Court of the European Union upheld OHIM's decision not to register the shapes of a chocolate rabbit, reindeer, bell or block featuring a mouse as Community trade marks on the basis that these signs are devoid of distinctive character.

Full the full texts of the following cases: Chocoladefabriken Lindt & Sprüngli AG v OHIM, Cases T-336/08, T-337/08 T-346/08 and T-395/08; August Storck KG v OHIM Case  T-13/09 (French-language versions).

L'Oreal SA and others v eBay ([2009)] EWHC 1094 (C-324/09)

The Advocate General has delivered his opinion on questions referred to the ECJ by the High Court in L'Oreal v eBay.   The questions concerned: (1) the liability of marketplace website operators (such as eBay) for the offer/sale of cosmetic samples, unboxed branded products, and non-EEA-sourced branded product on their websites; (2) the use of third party trade marks in sponsored links and offers for sale; (3) the applicability of the exemptions in the E-Commerce Directive to marketplace website operators; and (4) the scope of national courts for issuing injunctions against website operators such as eBay.

If the ECJ follows the Advocate General's opinion the outcome would be welcomed by the operators of online marketplace websites as it recommends that such operators should not generally be liable for trade mark infringements committed by users of their websites.  The Advocate General also recommended that such operators should be able to monitor content that is posted on their sites, and offer guidance without exposing the operator to potential liability for infringing content that they are unknowingly hosting.

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

For the full text of the decision, click here.

Cowshed Products Limited v (1) Island Origins Limited, (2) Patrick O'Conner and (3) Bianca O'Conner, High Court

HHJ Birss, sitting in the High Court, has refused to order an interim injunction in favour of Cowshed Products, owners of a range of trade marks consisting of and including the word COW for beauty products, to restrain the activities of Cowshed's former web designers, who were launching a range of beauty products under the name "The Jersey Cow Company".  The judge held that although both sides were at risk of suffering unquantifiable damage if the decision went against them, the effects of such damage on the claimant would be small, whilst the effect on the defendant would probably be to put them out of business.  He therefore ordered a speedy trial in preference to an interim injunction.

For the full text of the decision, click here.

Longevity Health Products Inc. v OHIM, General Court, Case T-363/09

Registration of the trade mark RESVEROL for pharmaceutical products was prevented by the owner of the existing mark LESTEROL which was registered for a subset of pharmaceutical products.  Bearing in mind the "average" degree of similarity between the marks and the identical nature of the goods there was a likelihood of confusion. 

For the full text of the decision, click here.

Novartis AG v OHIM, General Court, Case T-331/09

Novartis failed in its opposition to an application for TOLPOSAN based on its earlier registered mark TONOPAN.   While there was average similarity between the signs, there was only slight similarity between the goods, despite both being medicines in Class 5.

For the full text of the decision, click here.

ICB forced to change the name of Vodkat

Following a long-running legal battle between Diageo and Intercontinental Brands ("ICB"), ICB have agreed to change the name of its vodka-based alcoholic drink, Vodkat. ICB will also pay Diageo an undisclosed but substantial sum in damages and legal costs.

The name change, as part of a settlement agreement reached last month, follows a decision by the Court of Appeal, upholding the High Court's judgment that Vodkat was being unlawfully passed off as vodka. The Court found that there was goodwill in the term 'vodka' meaning that vodka now joins the list of products (including champagne and Advocaat) which enjoy protection under the extended form of passing off.

For our full Law-Now on this development, click here.

The full judgment in the High Court and Court of Appeal decisions can be found  here and  here respectively.

DATABASE RIGHTS

Football Dataco Ltd & others v YAHOO! UK Ltd, Court of Appeal

The High Court found that football fixture lists were not protectable under database right law. However, it found that such lists could be protected by copyright which applies to databases as copyright works in themselves, if such databases, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation.  The Court of Appeal considered that the ECJ's position on database right law was clear, so refused to refer any questions on this.  They did, however, refer the following questions: (1) In Article 3(1) of the Directive, what is meant by "databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation"? (2) Does the Directive preclude national rights in the nature of copyright in databases other than those provided for by the Directive?

For the full text of the decision, click here.

PATENTS

Unilever plc and others v Shanks [2010] EWCA Civ 1283

The Court of Appeal has held that the provisions of section 41(2) of the Patents Act 1977, relating to employee-inventor compensation when the invention has been assigned to a person/company connected with the employer, have to be looked at in relation to the actual benefits from the invention gained by that assignee.

The court overruled the decision of the High Court that held that the value of the benefit should be assessed on the basis of a hypothetical transfer to a non-connected, arm's-length person/company operating in the appropriate market at the appropriate time.

For the full text of the decision, click here.

Bayer Cropscience KK v Charles River Laboratories, Scottish Court of Session

The Scottish Court of Session has ruled that where a product had been imported, tested and authorisation had been obtained in an infringing manner before the patent had expired, a patentee is entitled to an account of profits made on authorised products sold after the patent has expired.

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 www.law-now.com/law-now/mondaq

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 24/01/2011.

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