Does AIRBNB break the law in France?

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The Advocate General of the European Court M. SZPUNAR  gave an opinion in the case  C‑390/18 AIRBNB Ireland v Hotelière Turenne SAS, Association pour un hébergement et un tourisme professionnel (AHTOP)Valhotel. The case concerns the following:

AIRBNB Ireland UC, a company governed by Irish law established in Dublin (Ireland), is part of the AIRBNB group and is wholly owned by AIRBNB Inc. AIRBNB Ireland administers, for all users established outside the United States, an online platform designed to connect, on the one hand, hosts (professionals and individuals) with accommodation available to rent with, on the other hand, persons seeking that type of accommodation.

Following a complaint against an unknown person, together with an application to join in the proceedings as civil party, lodged by, in particular, the Association pour un hébergement et un tourisme professionnel (AHTOP), the Prosecutor’s Office, Paris (France) on 16 March 2017 issued an initial indictment for handling of funds, for activities involving mediation and management of real property and business activities by a person not in possession of a professional licence, in accordance with the Hoguet law, and for other offences, alleged to have been committed between 11 April 2012 and 24 January 2017, and changed the status of AIRBNB Ireland to a ‘témoin assisté’ (a person who is not merely a witness, but to some extent a suspect).

AIRBNB Ireland denies acting as a real estate agent and claims that the Hoguet law is inapplicable on the ground that it is incompatible with Directive 2000/31.

It was in those circumstances that the investigating judge of the Tribunal de grande instance de Paris (Regional Court, Paris) (France), by decision of 6 June 2018, received at the Court on 13 June 2018, decided to stay proceedings and to refer the following questions to the Court:

‘(1) Do the services provided in France by the company AIRBNB Ireland via an electronic platform managed from Ireland benefit from the freedom to provide services provided for in Article 3 of [Directive 2000/31]?

(2) Are the restrictive rules relating to the exercise of the profession of real estate agent in France, laid down by [the Hoguet law], enforceable against the company AIRBNB Ireland?’

The Advocate’s opinion:

1) Article 2(a) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), read in conjunction with Article 1(b) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services, must be interpreted as meaning that a service consisting in connecting, via an electronic platform, potential guests with hosts offering short-term accommodation, in a situation where the provider of that service does not exercise control over the essential procedures of the provision of those services, constitutes an information society service within the meaning of those provisions.

2)  Article 3(4) of Directive 2000/31 must be interpreted as meaning that a Member State other than that in whose territory a provider of an information society service is established cannot, for reasons falling within the coordinated field, restrict the free movement of those services by relying, as against a provider of information society services, on its own initiative and without an examination of the substantive conditions being necessary, on requirements such as those relating to the practice of the profession of real estate agent, laid down in Law No 70-9 of 2 January 1970 regulating the conditions of the exercise of activities relating to certain transactions concerning real property and business assets.

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Bacardi won a case in Turkey for a trademark that has been never used there

pexels-photo-1571849Mutlu Köse published an interesting article for Marques Class 46 which discusses the court practice in Turkey regarding cases of non-use of trademarks.

The dispute at hand concerns a lawsuit initiated by Bacardi against a local beverage producer for a trademark infringement of BREEZER mark owned by the company.

The Turkey company uses similar sign FREEZER and look-alike packaging.

As a response, KIRBIYIK FREEZER started revocation proceeding against Bacardi’s BREEZER mark for lack of genuine use in the country for a period of 5 years as it is stipulated by the law.

Bacardi had never used its trademark but the reason for this was the fact that the Turkish regulations do not allow the sale of cocktail beverages containing distilled alcohols.

According to the Court, however, this represented a valid reason for non-use of the registered mark (the onliest option for overcoming such revocation apart from actual use) and dismissed the Turkish company request. At the same time, the court accepted the claims for trademark infringement and unfair competition against KIRBIYIK FREEZER.

The Black and white trademark color dominance in Sweden is over

sunnana-harbour-2914389_960_720.jpgHans Eriksson published an intriguing article for IPKat discussing the issue on color assessment of trademarks in Sweden.

Until that moment, the Swedish practice in that regard was to accept that trademarks in black and white covers all color combinations for the purpose of trademark assessment in case of disputes.

Not any more. The Swedish Patent Office and the Swedish court change that position implementing the European court decision in case C-252/12 Specsavers, according to which the registration of a trademark in black and white cannot be granted a scope of protection that automatically covers all possible color combinations.

Sweden alongside Denmark and Norway was one of the few countries in the EU which has continuously used this broader approach in color assessment of trademarks.

This change of the local practice will reflect on all future applicant who has to bear in mind that when they build their trademarks strategies for the territory of Sweden.

The full article can be found here.

Lacoste lost a crocodile case in Nederland

The Hague District Court ruled in a lawsuit between Lacoste and Hema, which concerns a children’s underwear with a crocodile motif.

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According to Lacoste, Hema infringed the rights over their registered trademarks, which above all is well-known amongst the consumers.

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The Court, however, disagreed with Lacoste stating that there was no infringement in the case at hand because the use of a repetitive crocodile pattern was perceived as a decoration, not as a source of origin. The practice of using animal depictions for children’s clothing is widespread.

Lacoste claimed that confusion could be created due to the fact that their trademarks have had a reputation on the market for many years. In addition, a survey was been provided, in which many respondents stated that they connect crocodile depictions with the Lacoste’s trademark.

The Court dismissed this evidence because the questions in the survey were leading, making respondents think about trademarks. On top of that, the relevant public wasn’t defined correctly.

According to Lacoste, some of the clothes contained only one depiction of crocodile which made even easier for the consumers to make a connection with their trademark.

The Court disagreed for this too, concluding that this cloth had been selling in a package with others and only in the Hema’s stores so the relevant consumers would not be confused neither be able to connect it with the Lacoste’s trademarks.

Source: AKD NV – Bram Woltering, Lexology.

Free use of copyrighted works for advertisement in Denmark – an important Court’s decision

flag-2526294_960_720Emil Jurcenoks and Peter Nørgaard reported for one interesting and at the same time an important decision of the Danish Supreme Court.

The case concerns advertising photographs made by the Danish supermarket chain Coop which contained among other tableware by the Danish designer Kasper Heie Würtz for which use, however, there wasn’t a concent by the designer nor any remunerations.

A lawsuit was been initiated. According to Coop there was no copyright infringement because the Danish legal practice allows minor use of copyrighted works in case that the works are not famous and the use is only as a background and minimal.

Würtz won the case before the first instance Maritime and Commercial High Court.

The Supreme Court upheld this decision. According to the court, Coop failed to prove that there is a legal practice which allows such copyright exceptions for applied art for advertising purposes. What’s more, the Court considers the use at hand as not minor due to the fact that all photographs contain the aforementioned tableware. An exception is possible but in very narrow cases where relevant works are not distinctive enough and are not essential elements in the reproductions.

The full article is accessible here.

Source: IPKat.

China introduced a new IP Court

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China introduced a new intellectual property court on 01.01.2019. The main aim of this new court, which is a part of the Supreme People’s Court, is to bring more quality and efficiency regarding all sorts of intellectual property desputes in the country and in that way to send a positive signal to all local and foreign market players.

The new court will be responsible for:

  • Civil law cases after the first instance
    That includes: Invention patent, utility model patent, layout designs for integrated circuits, technical inventions, computer software, new plant varieties
  • Administrative cases at first instance concerning more technical issues, including designs and monopoly disputes
  • Protest cases after first instance appeal cases which have entered into force after first instance independently of the civil cases or administrative cases mentioned above.

For more information here.

Source: Dr. Meyer-Dulheuer & Partners LLP.

Image: David Besh/Pexels

USPTO’s position on Alice/Mayo implementation

flag-1291945_960_720The USPTO published its new guidelines on the eligibility of subject matter in patent applications.

With these guidelines, the USPTO gives some important clarifications on the implementation of the first step of the US Supreme Court’s Alice/Mayo test. There are two main changed in that regard:

  • First, in accordance with judicial precedent and in an effort to improve certainty and reliability, the revised guidance extracts and synthesizes key concepts identified by the courts as abstract ideas to explain that the abstract idea exception includes certain groupings of subject matter: mathematical concepts, certain methods of organizing human activity, and mental processes.
     
  • Second, the revised guidance includes a two-prong inquiry for whether a claim is “directed to” a judicial exception. In the first prong, examiners will evaluate whether the claim recites a judicial exception and if so, proceed to the second prong. In the second prong, examiners evaluate whether the claim recites additional elements that integrate the identified judicial exception into a practical application. If a claim both recites a judicial exception and fails to integrate that exception into a practical application, then the claim is “directed to” a judicial exception. In such a case, further analysis pursuant to the second step of the Alice/Mayo test is required.

For more information here.