European IP Bulletin - Issue 85, November 2011

by McDermott Will & Emery
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In This Issue:

PARALLEL IMPORTS AND TRADE MARKS

Is a Trade Mark Infringed by Failure to Identify the Repackager of a Parallel Product?

In Orifarm A/S and Paranova Danmark A/S v Merck Sharp & Dohme Corp joined cases C-400/09 and C-207/10 28 July 2011 (unreported), the Supreme Court in Denmark sought clarification as to the applicability of the exhaustion of rights principle in relation to parallel imports.

UNREGISTERED DESIGN RIGHT

High Burden of Proof Where Concerted Copying is Alleged

In Pro-Tec Covers Ltd v Specialised Covers Ltd [2011] EWPCC 23, Richard Meade QC, sitting in the Patents County Court, has provided a detailed judgment on an unregistered design right infringement dispute, in which Pro-Tec had alleged that Specialised had undertaken “a concerted campaign of copying by at least four people, followed by a concerted campaign of lying about it and covering it up”. Although the judge could see why the circumstances of this matter could have given rise to suspicions of copying by Specialised, the evidence led to the opposite conclusion.

TRADE MARKS

Foreign Companies Need Actual Customers in The United Kingdom to Establish Passing Off

In Plentyoffish Media Inc v Plenty More LLP [2011] EWHC 2568 (Ch), the High Court of England and Wales has held that a foreign company’s reputation in the United Kingdom does not equate to goodwill in the United Kingdom and that actual customers are needed to bring an action in passing off.

Top Jeans Brand 7 For All Mankind Could Lose Right to Branded Accessories Over Distinctiveness of “Seven”

In Seven SpA v OHIM T-176/10 6 October 2011 (unreported) the General Court annulled a decision of the Board of Appeal of the Office of Harmonization for the Internal Market that rejected an opposition against the mark SEVEN FOR ALL MANKIND on the basis that the Board had erred in finding that there was no similarity between that mark and earlier composite marks featuring predominantly the word “seven”.

General Court Upholds OHIM Refusal of CTM Application For Shape of Loudspeaker

In Bang & Olufsen A/S v OHIM T-508/08 6 October 2011 (unreported), the General Court upheld a decision by the Office of Harmonization for the Internal Market (OHIM) refusing Bang & Olufsen’s Community trade mark (CTM) application for the shape of a loudspeaker, on the grounds that the mark consisted exclusively of the shape, which gave substantial value to the goods.

DOMAIN NAMES

Nominet Decisions May be Subject to Appeal to The High Court

In Michael Toth v Emirates [2011] EWPCC 18, his Honour Judge Birss QC, refused to strike out an application seeking to overturn a decision of a Nominet appeal panel that the registration of a domain name was abusive within the Nominet Dispute Resolution Service Policy. There was nothing in the contractual relationship between Mr Toth and Nominet to suggest that a decision of a Nominet expert or appeal panel was final.

JURISDICTION/DAMAGES/ PERSONALITY RIGHTS

Jurisdiction to Award Damages For Online Infringement of “Personality Rights” Clarified

The Court of Justice of the European Union (CJEU) has ruled that victims of infringements of “personality rights” by means of the internet can chose to bring actions before the courts of the Member State in which they reside in respect of all the damage caused. The CJEU also held that the operator of an internet website covered by the E-commerce Directive cannot be made subject to requirements stricter than those provided for by the law of the Member State in which it is established.

ADVERTISING

London 2012: Advertising in the Event Zones

England, Scotland and Wales are currently developing secondary legislation to regulate advertising activity and trading in open public places around Olympic and Paralympic events during the 2012 Games. The UK Government has published its response to the consultation on advertising and trading Regulations. Following the consultation, the Government has amended the draft Regulations to address the concerns raised over, for example, the unnecessarily broad definition of advertising and potential interference with local businesses.

COMMERCIAL/EU CONTRACT LAW

Draft Regulation on Optional EU-Wide Contract Law Proposed by The European Commission

Following the European Parliament’s backing of the proposal made by European Commission Vice-President Viviane Reding to introduce an optional Europe-wide contract law, the European Commission has proposed a Regulation on a Common European Sales Law, offering a single set of rules for cross-border contracts in all 27 EU Member States.

PRIVACY: SOCIAL NETWORKING

Social Networking Sites Could do More to Protect Minors’ Privacy

On 30 September 2011, the European Commission published a Report on an Assessment of the Implementation of the Safer Social Networking Principles for the EU. This is the second of two EU reports this year to find that social networking sites could do more to protect minors’ privacy.

DATA PROTECTION: COMPULSORY AUDITS

Information Commissioner Calls For Compulsory Data Protection Audits

The Information Commissioner has called for an extension of powers to order the compulsory data protection auditing in sectors that are causing concern over their handling of personal information.

Please see full issue below for more information.

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