European IP Bulletin - Issue 79, April 2011

by McDermott Will & Emery

In This Issue:


Gedeon Richter plc v Bayer Schering Pharma AG:

“Obvious to Try” and “Fair Expectation of Success” In Gedeon Richter plc v Bayer Schering Pharma AG [2011] EWHC 583 (Pat), Gedeon Richter plc applied to have two divisional patents belonging to Bayer Schering Pharma AG revoked for invalidity (the ‘301 and ‘069 patents). One of the grounds of invalidity was that the patents were obvious in respect of four items of prior art.


Football Dataco Ltd v Sportradar GmbH:

Copyright and Database Right Infringement and Jurisdiction Allowing Sportradar’s appeal in part, the Court of Appeal of England and Wales has ruled that Dataco’s copyright claim in relation to a database of football statistics failed because what was allegedly copied was “mere data”, not the database itself. Lord Justice Jacob, however, dismissed Sportradar’s appeal on jurisdiction over database right infringement claims insofar as they were based on allegations that Sportradar were joint tortfeasors with its UK customers. Further and most significantly, on the question of primary infringement by Sportradar of Dataco’s database rights, Jacob LJ has decided to refer the reutilisation issue to the Court of Justice of the European Union (CJEU).


Annette Campbell and Bente Zaber v Catherine Hughes (IAN ADAM): Name of Recently Deceased Famous Individual and Bad Faith Overturning the decision of a hearing officer of the UK Intellectual Property Office, Geoffrey Hobbs QC has held that an application to register the name of the well known deceased voice coach Ian Adam by his former business associate had been made in bad faith (Annette Campbell and Bente Zaber v Catherine Hughes (IAN ADAM) [2011] BL O-094-11).

P Ferrero SpA v OHIM:

Trade Mark Reputation and Existence Irrelevant in Assessing Likelihood of Confusion In Ferrero SpA v Office of Harmonisation in the Internal Market, Tirol Milch reg.Gen.mbH, Innsbruck, [2011] C- 552/09, the Court of Justice of the European Union (CJEU) has upheld a decision of the EU General Court (EGC) rejecting Ferrero’s invalidity action based on Ferrero’s earlier trade marks for KINDER against a figurative Community trade mark (CTM) incorporating the words TiMi KINDERJOGHURT.


Andrew Gray v News Group Newspapers Ltd:

Privilege Against Self-Incrimination and Scope of the “Intellectual Property” Exception In Andrew Gray v News Group Newspapers and Mulcaire [2010] EWHC 2893 (Ch), an action for misuse of confidential information and invasion of privacy brought by Andrew Gray (former football commentator) and Stephen Coogan (wellknown comedian), Mr Mulcaire refused to disclose certain information, arguing that he was protected from supplying evidence that might lead to self-incrimination. Mr Gray and Mr Coogan both applied to the High Court, requesting interim declarations that Mr Mulcaire was, in fact, unable to rely on the privilege against self-incrimination because of the nature of the proceedings and Section 72 of the Senior Courts Act 1981.


“Your data, your rights: Safeguarding your privacy in a connected world”:

The Four Pillars of Data Protection Reform In a speech entitled “Your data, your rights: Safeguarding your privacy in a connected world” delivered on 16 March 2010 to the EU Privacy Platform, Vice-President of the European Commission Viviane Reding outlined strict privacy rules for personal data held on the internet. Commissioner Reding called for an overhaul of the current Data Protection Directive (95/46/EC) to be based on “four pillars”: 1) the right to be forgotten, 2) transparency, 3) privacy by default, and 4) protection regardless of data location. As regards the fourth, Commissioner Reding sounded a warning that the new data protection regime would seek to impose EU privacy standards on non-EU organisations, including social networking services, that process data on EU citizens, regardless of where such services are based and the processing takes place. With regard to the application of EU law, the speech echoes recommendations made by the Article 29 Working Party in its December 2010 Opinion on applicable law in relation to determining applicability of EU law to non-EU entities according to the targeting of services at EU consumers.


OFT Market Study on Consumer Contracts

The market study by the Office of Fair Trading (OFT) on consumer contracts has considered the evidence on consumer problems with contracts. The report of the study sets out a framework for assessing harm from consumer contract terms, identifies how the existing legislation addresses those harms, and outlines contract problems of most concern to the OFT....

Please see full issue below for more information.

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McDermott Will & Emery

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