European IP Bulletin - Issue 78, March 2011

by McDermott Will & Emery

In This Issue:


Hasbro Inc v 123 Nahrmittel GmbH: Acquired Distinctiveness Versus Descriptiveness

BACKGROUND -Hasbro’s modelling clay for children, sold under the PLAYDOH mark, has been in existence since the 1950s. Hasbro owns UK and Community trade marks for the words PLAYDOH. Hasbro’s product is not intended to be eaten.

UK Gold Services Ltd v Dave Soho Ltd: Unregistered Rights Opposition Against DAVE

In UK Gold Services Ltd v Dave Soho Ltd [2011] B-1294448, the Office of Harmonization for the Internal Market (OHIM) rejected UK Gold Services’ trade mark application for the word DAVE on the basis of an opposition by Dave Soho Ltd. The opposition was based on the common law rights against passing off.

Formula One Licensing BV v OHIM: Losing Distinctiveness

In Formula One Licensing BV v OHIM [2011] unreported, the General Court of the European Union has held that the combination of “F” and “1” would be perceived as an abbreviation of “Formula 1” and descriptive of racing cars and races.


Nokia GmbH v IPCom GmbH & Co KG: Pre- and Post-Trial Patent Claim Amendments

The Court of Appeal of England and Wales has ruled in favour of Nokia and rejected IPCom’s appeal against the judgment of Mr Justice Floyd that two of IPCom’s patents relating to cellular mobile technology were invalid and the subsequent refusal by Floyd J to accept pre-and post- trial applications to amend one of them.

Virgin Atlantic Airways Ltd v Delta Airways Inc: “For” Claims Normally Construed as Meaning “Suitable For”

The Court of Appeal of England and Wales has, on an application by Delta for summary judgment, overturned Mr Justice Arnold’s decision to the effect that, based on Arnold J’s interpretation of the main patent claim, Virgin had no real prospect of establishing that Delta had infringed its patent for an aircraft seating system.

Virgin Atlantic Airways Ltd v Premium Aircraft Interiors UK Ltd: Subsequent Patent Claim Amendment and Res Judicata

Following an infringement action between the parties, the Court of Appeal had held the Claimant’s patent valid and infringed and made an order for damages, an injunction and a series of undertakings.

EU Council Approves Enhanced Cooperation with Respect to a Unitary Patent

Enhanced cooperation is a procedure available to allow a minimum of nine EU Member States, i.e., one third of the total number, to implement common measures in circumstances where unanimity cannot be reached between all States.

Questions on the Interpretation of the SPC Regulation Referred to the CJEU.

In connection with Neurim Pharmaceuticals (1991) Ltd v The Comptroller-General of Patents [2011] EWCA Civ 228, the Court of Appeal of England and Wales has referred five questions to the Court of Justice of the European Union (CJEU) on the interpretation of Regulation 1768/92/EC (now 469/2009) – The SPC Regulation. The questions relate to the meaning of the term “product”, and what inventive developments in the pharmaceutical field are entitled to protection under a Supplementary Protection Certificate (SPC).


Advocate General Considers Territorial Broadcasting Restrictions Incompatible with European Law

On 3 February 2011, Advocate General Kokott delivered her Opinion on a preliminary reference to the Court of Justice of the European Union (CJEU) concerning the legality of the use of satellite decoders purchased outside the United Kingdom to show Premier League football matches in public houses in the United Kingdom.


New Rules on Late Payment of Invoices

Tough measures have been implemented with the aim of reducing cash-flow problems responsible for putting one in four EU small and medium sized enterprises (SMEs) out of business.

European Contract Law: United Kingdom and European Union on Collision Course

On 1 July 2010, the European Commission published its Green

Paper on European contract law setting out possible practical

and legislative actions designed to bring more coherence to

contract law across the European Union.

Proposed Consumer Rights Directive: Conflicting Texts Adopted

On 24 January 2011, the EU Council of Ministers adopted a common approach to the Consumer Rights Directive that would see the scope of the Directive narrowed to cover distance selling and doorstep selling and would drop the original proposal for provisions on unfair terms, conformity with contract and consumer guarantees.

James Robinson v P E Jones (Contractors) Ltd: Concurrent Contractual Liability and Tortious Liability

On the difficult question of whether tortious liability can arise

concurrently with a contractual duty of care where loss is

purely economic...


FIFA and UEFA v Commission: UK’s Designation of the World Cup and European Championships as Listed Events Held Compatible with EU Law.

Please see full issue below for more information.

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Written by:

McDermott Will & Emery

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