European IP Bulletin - Issue 86, January 2012

by McDermott Will & Emery
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In This Issue:

COPYRIGHT/INJUNCTIONS AND ISPs

ISP Not Responsible for Preventing Illegal Downloading: CJEU Decision Finds Filtering System Would Infringe ISP’s Business Rights and Customers’ Freedom

In Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL C-70/10 24 November 2011, the Court of Justice of the European Union found that imposing an injunction on an internet service provider (ISP) requiring it to install a filtering system to prevent illegal downloading is unlawful under European law. To impose such a system would breach the ISP’s fundamental right to freedom to conduct business. Further, it would infringe the rights of its customers to the protection of their personal data and the freedom to receive or impart information.

COPYRIGHT/LICENSING

A Digital Copyright Exchange in The United Kingdom

The United Kingdom’s Department of Business, Innovation, and Skills has honoured its early commitment to one of the more controversial ideas put forward by Professor Hargreaves in his May 2011 Review of Intellectual Property and Growth by announcing the launch of a feasibility study on developing a Digital Copyright Exchange in the United Kingdom. The study will be led by Richard Hooper, former Deputy Chairman of Ofcom, the independent regulator and competition authority for the UK communications industries.

COPYRIGHT

Televisual “Communication To The Public” Stays Undefined: The Law Needs to “Catchup” with Technology

In ITV Broadcasting Ltd v TVCatchup Ltd [2011] EWHC 2977 (Pat), the High Court of England and Wales decided to maintain its reference to the Court of Justice of the European Union on the issue of “communication to the public”, however the reference on “reproduction of a substantial part” was no longer necessary.

“Communication to the Public”: CJEU Finds it Does Not Include Live Performances or Direct Presentations of Copyrighted Work

The Court of Justice of the European Union (CJEU) has once again considered the meaning of “communication to the public” under Article 3(1) of the Copyright Directive (2001/29/EC). This time the Court found that it does not include live performances or direct presentation of copyright protected works.

REGISTERED DESIGNS

Dyson v Vax Ltd: Court of Appeal Of England and Wales Finds “These are Different Designs”

In Dyson v Vax Ltd [2011] EWCA Civ 1206, Dyson Ltd has lost its appeal against Mr Justice Arnold’s decision that Vax Ltd had not infringed Dyson’s UK registered design in relation to its Dual Cyclone vacuum cleaner by importing and marketing the Mach Zen C-91 MZ vacuum cleaner.

PATENT

Appeal Against Exclusion From Patentability of Software to Protect Minors Online Allowed

In relation to the application by Protecting Kids the World Over(PKTWO)[2011] EWHC 2720 (Pat),the High Court of England and Wales has allowed an appeal against a decision of a Hearing Officer that found that an alarm notification system for monitoring inappropriate electronic communications fell within the computer program exclusion.

TRADE MARKS

Registration of Colour Marks: Cadbury’s Purple Registered for Chocolate

In Cadbury Ltd (The Colour Purple) BL 0-358-11 20 October 2011, the UK Intellectual Property Office has dismissed an opposition brought by Nestlé against Cadbury’s application to register a particular shade of purple as a UK trade mark for chocolate, on the basis that Cadbury would limit its specification of goods to those for which the mark had acquired distinctiveness.

TRADE MARKS/DOMAIN NAMES

WIPO Refuses to Order the Transfer of worldcup2011.com to The International Rugby Board

In Rugby World Cup Ltd v Andreas Gyrre WIPO D2011-1520 (1 November 2011) sole panellist Robert Badgely dismissed the complaint by the International Rugby Board (IRB) against ticket reseller Euroteam AS on the basis that the domain name could not be considered confusingly similar to the IRB’s trade marks RUGBY WORLD CUP and RUGBY WORLD CUP 2011, essentially because the dominant term “rugby” was lacking in the domain name.

DATA PROTECTION

The Information Commissioner’s Office Publishes Briefing on Future of Data Protection in The European Union

The Information Commissioner’s Office (ICO) has published a briefing on the future of data protection in the European Union, setting out the ICO’s views on the scope and expected content of the new EU data protection legal framework. The briefing outlines what the ICO would like to see in future legislation.

Proposals for Reform of the Data Protection Regime and Binding Corporate Rules

EU Justice Commissioner Viviane Reding recently delivered two speeches. One was on the proposals for reform of EU data protection laws and its impact on businesses, the other was on the benefits of “binding corporate rules”. Ms Reding’s speeches provide insight into the European Commission’s policy and its commitment to reform.

ENTERTAINMENT AND MEDIA

Malicious Falsehood During a Broadcast: Claims Must be Particularised

In Tesla Motors Ltd v British Broadcasting Corporation [2011] EWHC 2760 (QB), the High Court of England and Wales has ordered that a claim for malicious falsehood against the BBC should be struck out unless Tesla Motors Ltd obtains permission to amend its claim for damages, which it had not particularised properly, as required in a claim for malicious falsehood.

Please see full issue below for more information.

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