European IP Bulletin -- Issue 89, April 2012

by McDermott Will & Emery

In This Issue:


Court of Appeal of England and Wales Considers “Best” and “All Reasonable” Endeavours

The Court of Appeal of England and Wales in Limited v Blackpool Airport Limited [2011] EWHC 1529 (Comm) has provided guidance on the enforceability of “best endeavours” and “all reasonable endeavours” clauses. In doing so, a distinction was drawn between a clause in which the object is so uncertain that the clause would be incapable of creating a binding obligation and a clause that is imprecise in scope but is binding as its object can be placed in context.

Trade Marks

Court of Justice of the European Union Provides Ruling on Keyword Jurisdiction

The Court of Justice of the European Union (CJEU), in Wintersteiger AG v Products 4U Sondermaschinenbau GmbH C-523/10, has ruled that under Article 5(3) of the Brussels Regulation, an advertiser that uses a keyword that infringes a national trade mark on a country-specific top-level domain (TLD) of a Member State other than the Member State where the national trade mark is registered, can be sued in its Member State of establishment.

Data Protection

International Chamber of Commerce UK Cookie Guide

The International Chamber of Commerce (ICC) has issued guidance to help website operators and users understand and apply the changes to the Privacy and Electronic Communications Regulations 2003 relating to cookies that will come into force in the United Kingdom on 25 May 2012.

Working Party Opinion on The European Commission’s Data Protection Reform Proposals

The Working Party on the Protection of Individuals with regard to the Processing of Personal Data (the Working Party) has adopted an opinion on the European Commission’s proposals for reform of current data protection law. The opinion highlights a number of concerns and suggested improvements, but in general the Working Party welcomes the proposals.


Drug Formulation Patent Found to be Invalid in the United Kingdom but Valid in Other Jurisdictions

Mr Justice Arnold’s decision in Teva and others v Astrazeneca AB [2012] EWHC 655 (Pat) invalidated Astrazeneca’s patent for a sustained release formulation of the anti-psychotic drug quetiapine in the United Kingdom, on the grounds of obviousness, just days after the same patent was found to be valid in the Netherlands.


Cross-Border Sales: Tension Between Copyright Distribution Rights and Free Movement Rules

Advocate General Jääskinen has concluded that there is a distribution by sale in a Member State if a seller targets consumers and enables the purchase of copyright-protected works in that State. In addition, he has found that compliance with copyright protection in this context does not result in a disproportionate effect on the free movement of goods.


The High Court of England and Wales Rules on Formula One Confidentiality and Copyright Infringement

In Force India Formula One Team Ltd v 1 Malaysia Racing Team SDN BHD and others [2012] EWHC 616 (Ch), the High Court of England and Wales ruled on claims for contractual and equitable breach of confidence and copyright infringement brought by one Formula One (F1) race team operator against another. The judgment deals with quantum as well as liability.

Registered Community Designs

High Court of England and Wales Rules on Threats and Jurisdiction in Declaration for Non-Infringement

In Samsung Electronics (UK) Ltd and others v Apple Inc [2012] EWHC 889 (Ch), the High Court of England and Wales considered several preliminary issues in a case involving Apple’s registered Community design for a tablet computer.

Please see full issue below for more information.

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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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