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.


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.


When employees can legally reveal trade secrets in Finland?

pexels-photo-1024248Antti Rajamäki – DLA Piper published a brief article regarding the implementation of the Trade Secrets Directive ((EU) 2016/943) in Finland. One very intriguing aspect of this is the cases when an employee can reveal legally its employer’s trade secrets and the way how he can do that.

The full article can be found here.

WIPO Magazine – Issue 5

Untitled.pngWIPO published issue 5 of its WIPO Magazine where you can find the following:

  • Artificial intelligence and intellectual property: an interview with Francis Gurry
  • Bringing AI to life
  • Pat-INFORMED: a new tool for drug procurement
  • Intellectual property and e-commerce: Alibaba’s perspective

For more information here.



Puma won a lawsuit related to its brand reputation

puma-1838735_960_720.jpgThe General Court of the EU ruled in case T‑62/16 Puma SE v EUIPO and Doosan Machine Tools Co. Ltd.

The case concerns an attempt by Doosan to register the following European trademark in class 7: Lathes; CNC (computer numerical control) lathes; machining centres; turning centre; electric discharge machine. Puma claimed a mark with a reputation on top of that.downloadAgainst this mark, an opposition was filed by Puma based on the following earlier marks for Classes 18,25, 28, one of them for Class 7 too:

EUIPO rejected the opposition stating that the goods are so dissimilar that there are no possibilities for consumer confusion especially bearing in mind the fact that the relevant public in both of the cases is different.

Puma appealed this decision.

The General Court sided with the German company and annulled the EUIPO’s decision with the following arguments:

It follows from the considerations set out in paragraphs 68 to 71, 77 and 78 above that the Board of Appeal, first, did not properly take account of the degree of reputation relied on by the applicant and, secondly, did not properly assess the degree of inherent distinctive character of the earlier marks in its examination of whether there was a link between the marks at issue in the mind of the relevant public.

It should be recalled that the strength of the reputation and the degree of distinctive character, inherent or acquired by use, of the earlier marks may have a significant effect on the assessment of whether there is a link between the marks at issue.

In accordance with the case-law, certain marks may have acquired such a reputation that it goes beyond the relevant public as regards the goods or services for which those marks were registered. In such a case, the relevant section of the public as regards the goods or services for which the later mark is registered might make a connection between the conflicting marks, even though that public is wholly distinct from the relevant section of the public as regards goods or services for which the earlier mark was registered.

Thus, where the public concerned by the goods designated by the earlier mark and the public concerned by the goods designated by the mark applied for are distinct, it may be necessary to take account of the strength of the reputation of the earlier mark in order to determine whether that reputation extends beyond the public concerned by that mark.

Therefore, in the present case, even if there is no direct link between the goods designated by the marks at issue, which are dissimilar as the Board of Appeal found in paragraph 32 of the contested decision, the finding of an association with the earlier marks could, nevertheless, still have been possible if the Board of Appeal had properly taken account of the degree of reputation relied on by the applicant. Thus, even if the sections of the public which are respectively the target of the goods and services covered by each of those marks do not overlap, given that the goods concerned are different, it is possible that a connection between the marks at issue may be established, considering also the high degree of similarity between them.

The dissimilarity between the goods designated respectively by the marks at issue is therefore not a sufficient factor for excluding the existence of a link between those marks, bearing in mind also that the existence of such a link must be assessed globally, that is to say, by taking into account all of the relevant factors of the case.

The case was returned to the EUIPO for re-examination.

Copyright problems for Vodafone in the US

protected-267353_960_720.jpgVodafone failed to register its well-known trademark logo as a copyrighted work in the US Copyright Office.

The company was ascertaining that its logo is subject to copyright protection because it represents either a quotation mark or a balloon droplet in combination with geometrical shapes and colours.

The Office, however, disagreed, stating that widespread symbols and geometrical shapes cannot be registered as a copyrighted work due to a lack of originality.

According to the  Section 313.4(J) of the Compendium:

Familiar symbols and designs are not copyrightable and cannot be registered with the U.S. Copyright Office, either in two-dimensional or three-dimensional form. 37 C.F.R. § 202.1(a). Likewise, the Office cannot register a work consisting of a simple combination of a few familiar symbols or designs with minor linear or spatial variations, either in two-dimensional or three-dimensional form. Examples of familiar symbols and designs include, without limitation:
• Punctuation.
• Symbols typically found on a keyboard, such as asterisks, ampersands, and
the like.

While familiar symbols and designs cannot be registered by themselves, a work of authorship that incorporates one or more of these elements into a larger design may be registered if the work as a whole contains a sufficient amount of creative expression.

However, the mere fact that the symbol is combined with colours is not enough to create the necessary distinctiveness.

Source: Nedim Malovic, IPKat.