Breaking news – Youtube is liable for copyright infringement in Austria

organic-1280537_960_720.jpgThe Commercial Court of Vienna has issued a decision according to which YouTube is liable for copyright infringement of works uploaded by its users in Austria.

The case concerns allegations by the Austrian broadcaster Puls4 that its content was been uploaded without permission on Youtube.

The defensive position of Youtube was that the company operates in compliance with the requirement of the E-Commerce Directive according to which:

Article 14: Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:

(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or

(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

This option is possible only in the case of a “host provider”. The Vienna Court, however, based its decision on the European Court’s practice, which determines that there is no “host provider” when:

“. . . the service provider, instead of confining itself to providing that service neutrally by a merely technical and automatic processing of the data provided by its customers, plays an active role of such a kind as to give it knowledge of, or control over, those data.” (ECJ in L’Oreal ./.eBay)

The Court concluded that Youtube is not only a service provider but manage the uploaded data, promote it, measure the user’s activity etc. So in light of this, the company is not a neutral mediator.

It’s highly likely that this decision will be appealed but nevertheless, it shows the current more restrictive approach among different European courts toward the internet providers.

Source: Morrison & Foerster LLP – John F. Delaney, Christiane Stuetzle and Christoph Wagner, for Lexology.

Image: freephotocc, Pyxaby.

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What decision took the General Court of the EU in case of short trademarks?

pexels-photo-325876.jpegThe General Court of the European Union has ruled in case T‑241/16, El Corte Inglés, SA, e v European Union Intellectual Property Office (EUIPO).

The case concerns an attempt for registration of a Eu trademark EW for the following goods:

– Class 3: ‘Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices’;

–  Class 18: ‘Leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins, hides; trunks and travelling bags; umbrellas and parasols; walking sticks; whips, harness and saddlery’;

–  Class 25: ‘Clothing, footwear, headgear’.

Against this mark an opposition was been filed based on an earlier European trademark WE for the following goods:

–  Class 3: ‘Soaps, perfumery, essential oils, cosmetics, hair lotions’;

–  Class 18: ‘Leather and imitations of leather, and goods made of these materials and not included in other classes; umbrellas and parasols; trunks and travelling bags; bags not included in other classes’;

–  Class 25: ‘Clothing, footwear, headgear’.

The EUIPO upheld the opposition concluding that both signs are confusingly similar. The Board of Appeal confirmed this decision too.

The General Court, however, annulled the EUIPO’s decision reminding that in the case at hand both marks are very short signs consisting only of two letters in different order. According to the court in such cases, consumers can make easily a distinction between the marks. What’s more, the signs are dissimilar from a phonetical point of view, and for English speaking consumers they are different from a conceptual perspective too.

Registration of trademarks in The Eurasian Economic Union

700px-Flag_of_the_Eurasian_Economic_Union.svg.pngThe Eurasian Economic Union (EAEU) is an economic union between Russia, Armenia, Belarus, Kazakhstan, and Kyrgyzstan, which resembles the EU in some way.

From that point of view, Liudmila Serova (Gorodissky & Partners) published a very intriguing article for Lexilogy, which discusses how you can register trademarks in EAEU. In brief, there are three main ways in that regard:

  1. To register national trademarks in every separate country – the article gives some interesting details for the trademark legislation in the countries part of EAEU. For example, the well-known status of a trademark in Kazakhstan has to be proved every 10 years after renewing of the mark. The period for non-use of a mark in Russia, Kazakhstan, and Kyrgyzstan is only 3 years.
  2. The second option is to register trademark based on the Madrid system for international registration of marks.
  3. The last option is to register a regional EAEU trademark, which is a new option where you can file one application designating the countries part of the EAEU where you want your trademark to be registered. It’s an easier and cost-effective way.

More information can be found here.

Audiobooks, parents, and copyright infringements

audiobook-3106985_960_720The Advocate General of the European Court M. SZPUNAR gave its opinion in case C‑149/17 Bastei Lübbe GmbH & Co. KG versus Michael Strotzer. The case concerns the following:

(not an official translation, by google translate)

As a producer of phonograms, Bastei Lübbe AG, a company incorporated under German law, is the holder of copyright and related rights in the audiobook.

Mr Michael Strotzer is the owner of an internet connection through which, on 8 May 2010, this audio recording was shared for downloading with an unlimited number of users on a peer-to-peer file sharing platform. An expert determines with precision that the IP address belongs to Mr Strotzer.

By letter of 28 October 2010, Bastei Lübbe invited Mr Strotzer to suspend the infringement of copyright. As the latter did not comply with that invitation, Bastei Lübbe brought an action before the Amtsgericht München (Munich Regional Court, Munich) for pecuniary damages against Mr Strotzer as the owner of the IP address in question.

Mr Strotzer, however, denies himself having infringed the copyright and maintains that his Internet connection is sufficiently protected. He further claims that his parents had access to the link in question but who, to the best of his knowledge, did not have the audiobook on their computer, did not know about it and did not use the online software file sharing. At the time of the infringement in question, the computer was disconnected.

The Amtsgericht München (District Court, Munich) dismissed the action for damages brought by Bastei Lübbe on the ground that Mr Strotzer could not be accepted as the perpetrator of the alleged copyright infringement because he indicated that his parents have committed this infringement. Bastei Lübbe appealed to the Landgericht München I (District Court, Munich I, Germany) – the referring court in the present case.

The referring court is inclined to accept that Mr Strotzer is liable as the perpetrator of the alleged infringement of copyright, as it does not follow from his explanations that at the time the infringement was committed the internet connection was used by a third party, which is very likely to be the perpetrator. However, the referring court faces difficulties with regard to the Bundesgerichtshof (Federal Supreme Court) (Germany) case-law, in which it considers that the conviction of the defendant might contradict it.

It is true that, according to the case-law of the Bundesgerichtshof (Federal Supreme Court), as interpreted by the referring court, the applicant is required to set out facts from a legal and factual point of view and has the burden of proving the infringement of copyright. Furthermore, the Bundesgerichtshof takes the view that there is a factual presumption that such an infringement was committed by the internet link holder since no other person was able to use that internet connection at the time of the infringement. However, if the internet connection is not sufficiently protected or deliberately provided for use by other persons at the time of the breach, there is no such factual presumption that the breach has been committed by the link holder.

In such cases, the Bundesgerichtshof (Federal Supreme Court) case-law nevertheless entrusts the holder of the internet connection with a secondary obligation to state the facts in law and in fact. The latter fulfills this secondary obligation when he points out that other persons whose identity may be revealing have separate access to his Internet connection and may therefore have allegedly infringed copyright. However, if a family member had access to the internet connection in question, its holder is not obliged to provide further details on the timing and use of this link in view of the protection of marriage and the family guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union (hereinafter referred to as “the Charter”) and the relevant provisions of German constitutional law.

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

‘(1) Must Article 8 (1) and (2) in conjunction with Article 3 (1) of Directive 2001/29 be interpreted as meaning that penalties for infringements of the right to make a work available to the public continue to be’ dissuasive “and excluding liability for damage caused by an Internet connection owner through which Fileharing (” file sharing “) has been infringed if the Internet connection owner identifies at least one member of the family, which he had with him access to that Internet connection without, however, communicating more detailed details of the timing and use of the Internet by that member of the family by means of relevant studies?

2. Must Article 3 (2) of Directive 2004/48 be interpreted as meaning that measures for the enforcement of intellectual property rights continue to be ‘effective’ and where the liability for harm caused by an internet connection , which infringes copyright through Filesharing (“File Sharing”) if the Internet connection owner indicated at least one member of the family who, along with him, had access to that Internet connection but did not announced y by means of relevant studies, made more detailed details on the timing and use of the Internet by this family member? “

The Advocate General’s opinion:

‘Article 8 (2) of Directive 2001/29 / EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society and Article 13 (1) 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 not requiring in the domestic law of the Member States the introduction of a presumption of liability of the internet owner for infringements of the copyrights made through this connection. However, if domestic law provides for such a presumption in order to ensure the protection of those rights, that presumption must be applied consistently in order to ensure the effectiveness of the protection. The right to respect for family life recognized in Article 7 of the Charter of Fundamental Rights of the European Union cannot be interpreted in such a way as to deprive copyright holders of any real possibility of protecting their intellectual property rights enshrined in Article 17 (2) of the Charter of Fundamental Rights. “

снимка: sik-life / 95 images, Pixabay

Red Bull prevailed in a UK barbecue dispute

pexels-photo-555775Red Bull won an opposition against the following UK trademark application in Class 11 – barbecue smokers and grills, pellet smokers and grills.

Untitled

The opposition was based on an earlier word mark RED BULL and the following figurative mark, both in Class11:

Untitled 2

According to the the UKIPO, there is a phonetic similarity between the sign which shares identical first part Red Bull. The presence of the words BBQ Grills in the later mark is not sufficient to differentiate them due to its lack of distinctiveness.

From a conceptual point of view, both marks are highly similar wheres from a visual side they are not because of the different graphical representations.

The earlier marks are within their 5 year period for use, so there is no need for a genuine use to be proved although Red Bull doesn’t use its trademarks for such goods.

In its conclusion, the Patent Office summarized that the signs at hand are similar to the extent that they can lead consumers to think that the goods are produced by the same or an economically linked undertaking.

Source: WIPR.

Brief IP news

briefs_1131.   First Edition of the EUIPO Trade Mark and Design Education Programme. For more information here.

2. Pharmaceuticals: European Commission refines intellectual property rules. For more information here. 

3. Vtree Energy: Building a solar future through intellectual property. For more information here.

Source: Intellectual Property Center at the UNWE. More information can be found here