Over the first half year, we have covered a number of high profile cases heard before the General Court (GC) and the European Court of Justice (CJEU). Here’s a quick roundup of the cases with a takeaway summary for each:

Preliminary ruling on designs which are solely dictated by technical functions

“The court considered the appearance of a product to be the decisive factor for a design, despite the fact that it is not essential to have an aesthetic aspect for design protection.”

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C-163/16 – Louboutin “red sole” case

“In summary, other properties of the sign – such as the colour – may have an important impact on trade marks in that the trade mark no longer “exclusively” consists of the shape, and hence does not fall foul of Article 3(1)(e) of Directive 2008/95/C.”

We first covered the Advocate General’s second opinion here and followed up with an update on the CJEU judgement here.

CJEU confirms that unitary evidence can show acquired distinctiveness throughout the whole of the European Union

“The CJEU judgment clearly upholds the principle of extrapolation of evidence and is good news for trade mark owners. It is now clear that EUTM owners trying to show acquired distinctiveness are not expected, as a matter of a box ticking exercise, to assume a disproportionate and entirely artificial exercise of evidence collection for each and every Member State.”

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A second market for “used” e-books – CJEU will decide

“Incidentally, this is not the first time that e-books have occupied the CJEU. On 10 November 2016, the European Court of Justice ruled on the rental of e-books (C-174/15). The court stated that the rules for the lending of e-books are the same as for the lending of physical copies – provided the lending conditions are comparable to those of physical books.”

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Don’t judge substantiation by its cover: CJEU clarifies benchmark for EUTM oppositions

This new rule clarifies that the opponent has to submit some evidence as to the content of the particular provision. It is not entirely clear what “publications of the relevant provisions” means… The Court’s decision is a helpful guidance as there will still be a high number of cases from the past to which the reformed law will not be applicable. For the older cases it is sufficient to make a clear reference to the national provisions as well as to explain the application and scope of them in the individual case.

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