European IP Bulletin - Issue 82, July 2011

by McDermott Will & Emery
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In This Issue:

PATENTS

The “Patent Box”: Preferential Tax on Profits From Patents

On 10 June 2011, the UK Government launched a Consultation on the “Patent Box”, a preferential corporation tax regime of 10 per cent on profits arising from patents. According to HM Treasury, the consultation forms part of the Government’s plans to make the United Kingdom’s tax system the most competitive in the G20.

UNREGISTERED DESIGN

Documentation of the Creative Process is Key to Overcoming an Inference of Copying

Key to Overcoming an Inference of Copying In Albert Packaging Ltd and others v Nampak Cartons and Healthcare ltd [2011] EWPCC 15, although there was an inference that the Claimants’ unregistered design had been a consideration in the Defendant’s creative process, the Defendant was able to produce documentation that showed the design as a work in progress.

TRADE MARKS

Court of Appeal of England and Wales Upholds High Court’s Construction of Co- Existence Agreement

The Court of Appeal of England and Wales has upheld the judgment of Mr Justice Arnold in a dispute between US company, Omega Engineering Inc (Omega USA), and Swiss watchmaker, Omega SA (Omega Swiss), over the application by Omega USA for a UK trade mark for OMEGA and the construction of a co-existence agreement.

TRADE MARKS

UK High Coure Rules on Oral Community Trade Mark Licensee Rights

In Jean Christian Perfumes Ltd v Thakrar (t/a Brand Distributor or Brand Distributors Ltd) [2011] EWCH 1383 (Ch), John Baldwin QC, sitting as a Deputy Judge in the Chancery Division, ruled that even an oral licensee of a Community trade mark (CTM) can sue for infringement.

COPYRIGHT

Breach of Co-Existence Agreement, Passing Off and Copyright Infringement

In Future Publishing Ltd v The Edge Interactive Media Inc & Ors [2011] EWHC 1489 (Ch) the Claimant succeeded in showing breach of a co-existence agreement through actions that amounted to passing off. The Claimant also succeeded in invalidating the Defendants’ marks.

PASSING OFF

Localised Goodwill of Small Businesses

In Redwood Tree Services Ltd v Warren Apsey t/a Redwood Tree Surgeons [2011] EWPCC 14 (13 May 2011) it was found that a small business with highly localised goodwill could succeed in a claim for passing off against a business with a similar name located 10 miles away that traded in part in the same catchment area if there was the requisite misrepresentation. Unlike the national protection offered by a registered trade mark, the protection of goodwill against passing off is limited in scope to the geographical area common to both businesses.

DATA PROTECTION

Big Brother Becomes Big Bother For CCTV Monitoring Website Forced to Change the Way it Operates

The Information Commissioner’s Office (ICO) has required CCTV monitoring website, Internet Eyes, to make significant changes to its operations after CCTV footage of a shopper was posted on YouTube.

DATA PROTECTION

European Parliament Calls for Stronger Rules on Personal Data Protection

In adopting a resolution on the need for a comprehensive approach to data protection in Europe, the European Parliament notes that the current regime is strong but can be improved. Areas of focus are: the need for full harmonisation, the protection of children using social networks, and that all EU citizens should have the right to know what information is being stored and for what purpose.

UNFAIR CONTRACTUAL TERMS

Gym Contracts and The Unfair Trading Regulations

The High Court of England and Wales has held that Ashbourne Management Services Ltd’s standard form contracts breached the Unfair Terms in Consumer Contracts Regulations 1999, the Consumer Protection from Unfair Trading Regulations 2008, and the Enterprise Act 2002.

CONSUMER RIGHTS DIRECTIVE

European Parliament Approves the Proposed Consumer Rights Directive

On 23 June 2011, the European Parliament approved the proposed Consumer Rights Directive (CRD), which now only needs formal approval from the European Council to become law. The proposed Directive contains significant new protections for consumers including clearer pricing rules, common rules on delivery and transfer of risk, and a 14 day right of withdrawal.

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