iGrill cannot be a trademark in the EU

pexels-photo-1309067.jpegThe General Court of the EU has ruled in case T‑822/17, Weber-Stephen Products LLC v EUIPO which concerns a European trademark application for word mark iGRILL applied for the following classes:

  • 9 ‘Computer Hardware; Computer Software; Software for mobile phones; Electric measuring instruments; Electronic Thermometers, other than for medical use; Monitoring control apparatus (electric); Thermometers; Downloadable Software; Electronic temperature Monitors, other than for medical use; Electronic temperature Recorders, other than for medical use’,
  • 21: ‘Household, kitchen and barbecue utensils and containers (not of precious metal or coated therewith); grill cover’.

The EUIPO refused to register this mark based on absolute grounds – descriptiveness. According to the the Office the i letter can be related to intelligible IT technologies, whereas Grill means grill. The decision was appealed.

The Court upheld the EUIPO position. The US company’s arguments that i could not be understood as technology-related matter are dismissed, at least because the mark itself cover a class for such technologies.

According to Weber-Stephen Products, class 9 doesn’t specify any technologies connected to grill products. The Court, however, disagreed stating that the mentioned technologies in this class can be used for grills too.

Source: WIPR.

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Can military reports be subject to a copyright protection?

military-jet-fighter-569907_960_720The Advocate General of the European Court M. SZPUNAR gave his opinion on Case  C‑469/17 Funke Medien NRW GmbH versus Bundesrepublik Deutschland, which concerns the following:

The defendant, the Federal Republic of Germany, has a military status report drawn up every week on the deployments of the Bundeswehr (Federal Armed Forces, Germany) abroad and on the developments at the deployment locations. The reports are referred to as ‘Unterrichtung des Parlaments’ (Parliament briefings, ‘UdPs’) and are sent to selected members of the Bundestag (Federal Parliament, Germany), to sections of the Bundesministerium der Verteidigung (Federal Ministry of Defence, Germany) and other federal ministries, and to subordinate bodies of the Federal Ministry of Defence. UdPs are categorised as ‘classified documents — Restricted’, the lowest level of confidentiality. At the same time, the defendant publishes summaries of the UdPs known as ‘Unterrichtung der Öffentlichkeit’ (public briefings, ‘UdÖs’).

The applicant, Funke Medien NRW GmbH (‘Funke Medien’), a company incorporated under German law, operates the website of the daily newspaper Westdeutsche Allgemeine Zeitung. On 27 September 2012, it applied for access to all UdPs drawn up between 1 September 2001 and 26 September 2012. The application was refused on the ground that disclosure of the briefings could have adverse effects on security-sensitive interests of the federal armed forces. The defendant nevertheless obtained, by unknown means, a large proportion of the UdPs and published several of them as the ‘Afghanistan-Papiere’ (Afghanistan Papers).

The Federal Republic of Germany took the view that Funke Medien had infringed its copyright over those reports and thus brought an action against it seeking an injunction, which was upheld by the Landgericht (Regional Court, Germany). Funke Medien’s appeal was dismissed by the appellate court. By its further appeal on a point of law, Funke Medien maintains its form of order seeking dismissal of the injunction action.

In those circumstances, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

‘(1)  Do the provisions of Union law on the exclusive right of authors to reproduce (Article 2(a) of Directive 2001/29) and publicly communicate their works, including the right to make works available to the public (Article 3(1) of Directive 2001/29), and the exceptions or limitations to these rights (Article 5(2) and (3) of Directive 2001/29) allow any latitude in terms of implementation in national law?

(2) In which way are the fundamental rights of the Charter … to be taken into account when ascertaining the scope of the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29 to the exclusive right of authors to reproduce (Article 2(a) of Directive 2001/29) and publicly communicate their works, including the right to make works available to the public (Article 3(1) of Directive 2001/29)?

(3) Can the fundamental rights of freedom of information (second sentence of Article 11(1) of the Charter) or freedom of the media (Article 11(2) of the Charter) justify exceptions or limitations to the exclusive rights of authors to reproduce (Article 2(a) of Directive 2001/29) and publicly communicate their works, including the right to make works available to the public (Article 3(1) of Directive 2001/29), beyond the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29?’

13. The request for a preliminary ruling was received at the Court on 4 August 2017. Written observations were lodged by Funke Medien, the German, French and UK Governments and the European Commission. The same parties were represented at the hearing on 7 July 2018.

The Advocate’s position:

Article 11 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 52(1) thereof, must be interpreted as precluding a Member State from invoking copyright under Article 2(a) and Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society in order to prevent the communication to the public, in the context of a debate concerning matters of public interest, of confidential documents emanating from that Member State. That interpretation does not prevent the Member State from applying, in compliance with EU law, other provisions of its domestic law, including those relating to the protection of confidential information.

New database for protected plant varieties and animal breeds in Bulgaria

vegetables-vegetable-basket-harvest-garden.jpgThe Bulgarian Patent Office has launched its brand new online database for protected plant varieties and animal breeds in Bulgaria. This will allow everyone who has an interest in to do a search online. The database has a version in English too although you have to bear in mind that to search for protected plant varieties and animal breeds you need to do that using their names in Cyrillic.

The database is accessible here.

 

“Cooking Chef Gourmet” cannot be a trademark according to the EU General Court

food-mixer-413737_960_720.jpgThe General Court of the European Union has issued a decision which confirmed the EUIPO position to reject trademark protection for “Cooking Chef Gourmet” applied for Classes 7 and 11 (cooking appliances) filed by the Italian company De’Longhi.

According to EUIPO, this slogan is laudatory and descriptive because it is widely used for food and drink by general and specialised (in the restaurant business) public that uses English language.

The Court upheld this decision dismissing De’Longhi’s arguments that its mark has acquired distinctive character based on its connection with the famous Chef that has been using since the 1950s.

The Court considered this as an inappropriate suggestion because there was no evidence submitted before the EUIPO that supported this statement. What’s more, the applied-for mark and the famous earlier mark were too different for such a conclusion.

Source:WIPR.

Shift the blame for copyright infringement to your parents – an EU Court decision

pirate-2129571_960_720The European Court has ruled in case C‑149/17,Bastei Lübbe GmbH & Co. KG v Michael Strotzer, which concerns the following:

Bastei Lübbe is the holder, as a phonogram producer, of the copyright and related rights in the audio version of a book.

Mr Strotzer is the owner of an internet connection through which, on 8 May 2010, that audio book was shared, for the purpose of downloading, with an unlimited number of users of a peer-to-peer internet exchange. An expert correctly attributed the IP address in question to Mr Strotzer.

By letter of 28 October 2010, Bastei Lübbe warned Mr Strotzer to cease and desist the infringement of copyright which had occurred. That warning notice was unsuccessful and Bastei Lübbe brought an action before the Amtsgericht München (Local Court, Munich, Germany) against Mr Strotzer as the owner of the IP address in question, seeking damages.

However, Mr Strotzer denies having himself infringed copyright and maintains that his connection was sufficiently secure. In addition, he asserts that his parents, who live in the same household, also had access to that connection but that to his knowledge they did not have the work in question on their computer, were not aware of the existence of the work and did not use the online exchange software. In addition, Mr Strotzer’s computer was switched off at the time when the infringement in question was committed.

The Amtsgericht München (Local Court, Munich) dismissed Bastei Lübbe’s action for damages on the ground that Mr Strotzer could not be held liable for the infringement of copyright in question, because he had stated that his parents could also have committed the infringement in question.

Bastei Lübbe appealed against the decision of the Amtsgericht München (Local Court, Munich) before the Landgericht München I (Regional Court, Munich I, Germany).

That court is inclined to hold Mr Strotzer liable in that it does not follow from his explanations that a third party used the internet connection at the time of the infringement. It considers that Mr Strotzer is therefore seriously likely to have committed the copyright infringement.

That court nevertheless considers itself to be compelled to apply Paragraph 97 of the Law on copyright and related rights, as amended by the Law of 1 October 2013, as interpreted by the Bundesgerichtshof (Federal Court of Justice, Germany), which in its view might preclude the defendant from being held liable.

In fact, according to the case-law of the Bundesgerichtshof (Federal Court of Justice), as interpreted by the referring court, it is for the applicant to allege and prove the infringement of copyright. The Bundesgerichtshof (Federal Court of Justice) considers, moreover, that the owner of an internet connection is presumed to have committed such an infringement provided that no other person was able to use the internet connection at the time of the infringement. However, if the internet connection was not sufficiently secure or was knowingly made available to other persons, then the owner of that connection is not presumed to have committed the infringement.

In that case, the case-law of the Bundesgerichtshof (Federal Court of Justice) nonetheless places on the owner of the internet connection a secondary burden to present the facts. The owner discharges that secondary burden to the requisite standard by explaining that other persons, whose identity he discloses, where appropriate, had independent access to his internet connection and are therefore capable of having committed the alleged infringement of copyright. Although a family member of the owner of the internet connection had access to that connection, the owner of that connection is not, however, required to provide further details relating to the time and the nature of the use of that connection, having regard to the protection of marriage and family guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the corresponding provisions of the German Basic Law.

In those circumstances, the Landgericht München I (Regional Court, Munich I) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1. Should Article 8(1) and (2), in conjunction with Article 3(1), of Directive 2001/29/EC be interpreted as meaning that “effective and dissuasive sanctions” for infringements of the right to make works available to the public are still provided for even when the owner of an internet connection used for copyright infringements through file-sharing is excluded from liability to pay damages if the owner of that internet connection can name at least one family member who, besides him or her, might have had access to that internet connection, without providing further details, established through appropriate investigations, as to when and how the internet was used by that family member?

2. Should Article 3(2) of Directive 2004/48/EC be interpreted as meaning that “effective” measures for the enforcement of intellectual property rights are still provided for even when the owner of an internet connection used for copyright infringements through file-sharing is excluded from liability to pay damages if the owner of that internet connection can name at least one family member who, besides him or her, might have had access to that internet connection, without providing further details, established through appropriate investigations, as to when and how the internet was used by that family member?’

The Court ‘s decision:

Article 8(1) and (2) of Directive 2001/29/EC, of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, read in conjunction with Article 3(1) thereof, and Article 3(2) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which, as interpreted by the relevant national courts, the owner of an internet connection used for copyright infringements through file-sharing cannot be held liable to pay damages if he can name at least one family member who might have had access to that connection, without providing further details as to when and how the internet was used by that family member.

When AI can be protected by patents?

robot-1797548_960_720Darren Hau (Marks & Clerk) published an interesting article for Lexology which discusses the topic for patent protection of Artificial Intelligence (AI).

As it is well known, computer programs and mathematical methods are excluded from patent protection because it requires a technical solution of a technical problem.

The main question here is, however, when one software, including AI, meets these requirements, that is to say when it has a concrete technical effect.

The updated EPO “Guidelines for Examination”  gives some tips in that regard.

When it comes to AI inventions, the guidelines provide the following as examples of technical applications:

  • control of a specific technical system/process;
  • encryption/decryption or signing electronic communications;
  • audio/image/video enhancement or analysis;
  • speech recognition, e.g. mapping a speech input to a text output;
  • etc.

The natural conclusion from an in-depth analysis of these examples is that AI is protectable by patents in a case that it claims are restricted to specific technical purposes or such technical implementations.

The full article can be found here.

Alibaba tries to use blockchain to combat against IPRs infringements

blockchain-3277335_960_720WIPR reports about a new patent application filed by one of the biggest online retailer Alibaba in the US. This patent concerns a blockchain technology that allows government agencies or authorised parties to freeze accounts in Alibaba for which there are suspicious for an infringement of intellectual property rights.

This will facilitate the enforcement of IPRs which is a challenge in the digital era.

According to the article, Alibaba possesses more than 10% of all patents related to blockchain technology in the world for the last year. This technology is deemed as a potentially effective tool for combating against online IPRs infringements.