European IP Bulletin - Issue 77, February 2011

by McDermott Will & Emery
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IN THIS ISSUE:

COPYRIGHT:

Bezpecnostni softwarová asociace-Svaz softwarové ochrany v Ministerstvo kultury: Copyright in a Graphic User Interface

In Bezpecnostni softwarová asociace-Svaz softwarové ochrany (BSA) v Ministerst so kultury 22 December 2010 (unreported), the European Court of Justice (ECJ) has ruled that a graphic user interface (GUI) does not constitute a form of expression of a computer program within the meaning of Article 1(2) of the Software Directive (91/250/EC). The ECJ nevertheless ruled that a GUI can, “as a work”, be protected by copyright under the Copyright Directive (2001/29/EC)....

TRADE MARKS:

Joined Cases Chocoladefabriken Lindt & Sprüngli AG OHIM and August Storck KG v OHIM: Animal Shapes Lack Distinctive Character for Chocolate Goods

In joined cases involving the Office of Harmonization for the Internal Market (OHIM), Chocoladefabriken Lindt & Sprüngli AG v OHIM T-336/08, T-337/08, T346/08 and T-395/08 and Case T-13/09 August Storck KG v OHIM 17 December 2010 (unreported), the EU General Court confirmed that the shapes of various chocolate animals, including the Lindt gold bunny, are devoid of distinctive character for the purposes of the Community Trade Mark Regulation (207/09/EC)....

PASSING OFF:

Lifestyle Management Ltd v Frater: Domain Names and Instruments of Fraud

In Lifestyle Management Ltd v Frater [2010] EWHC 3258(TCC) Mr Frater, a former agent of the Lifestyle Management Ltd (Lifestyle), has been found by the High Court of England and Wales, on a without notice application for an interim injunction, to have committed acts of passing off by pointing certain domain names to websites that closely resembled the home page of his former principal’s website....

Cowshed Products Ltd v Island Origins Ltd: Interim Injunction and The Risk of Injustice

Cowshed Products Ltd (Cowshed), sought an interim injunction restraining the Defendants from using the brand “Jersey Cow”. The injunction arose as part of an action by Cowshed for infringement of its trade marks, in particular the mark COW, under Sections 10(1), 10(2) and 10(3) of the Trade Marks Act 1994, and for passing off....

PATENTS:

European Commission Proposal For Enhanced Cooperation in Unitary Patent Protection

The debate surrounding the Community patent has raged for over 40 years. To date, efforts to establish a Community patent have all failed, largely due to the issues of language, translations and jurisdiction to deal with disputes....

Cephalon Inc v Orchid Europe Ltd: Generics, Interim Injunctions and “Clearing The Way”

The High Court of England and Wales has refused to grant an interim injunction to Cephalon against Orchid Europe Ltd’s generic version of Cephalon’s patented sleeping disorders drug, modafinil. Floyd J concluded that the balance of convenience was in favour of the Defendants....

DATABASES:

Football Dataco Ltd v Yahoo! UK Ltd: Database Right and Database Copyright

The Court of Appeal of England and Wales has confirmed that sui generis database right does not subsist in football fixture lists. However, it has referred questions to the European Court of Justice (ECJ) relating to the scope of protection of database copyright under Article 3 of the Database Directive (96/9/EC)....

DATA PROTECTION:

Article 29 Working Party Opinion on Applicable Law: Clarifying The Scope of Application of The Data Protection Directive

On 16 December 2010, the Article 29 Working Party—the European advisory body on data protection and privacy— adopted an Opinion on applicable law (WP 179), aimed at clarifying the scope of application of the Data Protection Directive (95/46/EC), particularly Article 4, which determines which national data protection laws adopted pursuant to the Directive may be applicable to the processing of personal data. The Opinion also highlights some areas for possible further improvement as a part of the revision of the general data protection framework....

COMMERCIAL:

OFT Response to Green Paper on Policy Options For Progress Towards a European Contract Law for Consumers and Businesses

The Office of Fair Trading (OFT) has issued a response to the call from the Ministry of Justice for evidence and views on the European Commission’s Green Paper on policy options for progress towards a European contract law for consumers and businesses. The OFT advocates a conservative and cautious approach to the EC’s proposed policy options....

MEDIA:

Jane Clift v Slough Borough Council: Defamation, Public Authorities, Qualified Privilege and The Human Rights Act

E-COMMERCE, IT AND BANKING TECHNOLOGY:

Joined Cases Peter Pammer v Reederei Karl Schlüter GmbH & Co KG and Hotel Alpenhof GesmbH v Oliver Heller: Circumstances in Which an Online Trader “Directs Its Activities” to Another Member State

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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