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CJEU Paves the way for Red-Soled Heels to Widen the Scope of Liability of E-Commerce Platforms

Mar 14 2023

A recent preliminary ruling by the Court of Justice of the European Union (“CJEU”) in the joint cases (C-148/21 and C-184/21) between a luxury fashion brand known for its signature red-soled heels Christian Louboutin and an e-commerce giant Amazon might mark a start of an era of increased accountability of marketplaces in relation to listings of third parties they accommodate on their platforms.

Some (General Court) Decisions Put a SMILE on Your Face

Feb 20 2023

We are used to decisions about non-traditional trade marks not deserving protection in the European Union, leading to the inevitable conclusion that non-traditional trade marks can be difficult to register and keep on the register.

The recent McCain decision of the EU General Court seems to go into the opposite direction, providing some guidance on which proof of use will be sufficient for a non-traditional trade mark to stay on the EU register (see here).

Global Trends in Hydrogen IP Protection

Feb 20 2023

The European Patent Office (EPO) and the International Energy Agency (IEA) recently published a joint report summarizing innovation and patent trends within the hydrogen economy.¹ The report is based on global patent activity since 2001² and is intended to help governments and businesses understand which parts of the hydrogen value chain appear to be making progress and which parts may be lagging behind.³ The report dives deep into specific technologies, lists the most active applicants in select technologies, and attempts to identify the impact of different governmental programs in specific sectors, with a goal of trying to help focus future innovation efforts.

False Advertising – Large Jury Verdicts in 2022 and the Likely Uptick in False Advertising Suits in 2023 – Part 1

Feb 10 2023

Some of the largest false advertising jury verdicts were recorded in 2022. This, coupled with increased inflationary pressures will likely lead to an uptick in false advertising suits given that such pressures will impact consumer spending habits, leading to increased scrutiny of competitor advertising practices—particularly in the social media space.

Are Medical Diagnostic Methods Patent Ineligible by Convention?: CareDx, Inc. v. Natera, Inc. and Eurofins Viracor, Inc.

Jan 30 2023

In CareDx, Inc. v. Natera, Inc., the U.S. Court of Appeals for the Federal Circuit held that CareDx’s patent claims to methods of detecting organ transplant rejection were invalid as patent ineligible under 35 U.S.C. § 101.¹ Affirming the district court, the Federal Circuit determined that CareDx’s claims “are directed to a natural law together with conventional steps to detect or quantify the manifestation of that law,”² relying on “admissions” in the patents themselves that the claims recited only “conventional” techniques.’

Public Consultation Underway for Australian Copyright Enforcement Regime

Jan 29 2023

On 24 November 2022, the Australian Attorney-General the Hon Mark Dreyfus KC MP announced the Attorney-General’s Department intention to release an issues paper for public consultation, as the first stage of a review into Australia’s current copyright enforcement regime. The broad aim of the review is to understand:

Current and emerging copyright enforcement priorities and challenges;
Whether Australia’s copyright enforcement regime remains relevant, effective and proportionate; and
Whether existing enforcement mechanisms need to be strengthened, and if so, how this could be done without imposing unreasonable administrative or economic burdens.

If You Want It, You Should Have Done a Search On It: Why Trademark Searches are Essential Before Settling Down With a New Brand

Jan 13 2023

Have you chosen a brand only to learn months later that the U.S. Patent and Trademark Office is refusing to register it due to someone else’s prior trademark registration or pending application? The USPTO’s most recent Q4 2022 data indicates that it takes 8 months or more for a trademark application to be reviewed—and ideally approved—by an examiner. Given that prolonged timeline, any issues with the application, such as a similar third-party mark that could prevent your own registration, may not surface until you or your company has already invested heavily in the mark.

This raises the question: what can be done for brands eager to launch but that want some measure of comfort that their trademark will be valid?

The answer: Searching.

Dec 23 2022

It is beGINning to look a lot like a legal disputes saga between supermarkets in the UK. We have recently covered an ongoing dispute between Lidl and Tesco (see here), which relates to an alleged trade mark infringement. This time, Marks & Spencer (M&S) are suing the largest Europe’s discount grocery chain Aldi for copying their registered designs of the light-up Christmas gin bottles. This is the second legal case in recent times brought by M&S against Aldi, with the first one involving the famous Colin the Caterpillar cake, which has since been settled. Notably, the case at hand in relation to gin bottles demonstrates the benefits of registering designs in the UK, especially if such design is unique and has a significant value to the brand, and the brand would like to protect it against any copycats.

Trademark Applications and Infringements in Germany: The Importance of Potential Revocation and Non-Use

Dec 22 2022

Hamburg, Germany – Not only known for its famous seafood and the third largest European seaport for goods and cargo handling¹, but also a considerable and noteworthy jurisdiction when it comes to the protection and enforcement of trade mark rights in preliminary proceedings.

The Higher Regional Court of Hamburg found in a recent trade mark dispute in preliminary injunction proceedings (Decision of 29 September 2022 – 5 U 91/21) between the “Deutsche Telekom” (“Claimant”) and the Spanish telecommunication company “Telefónica” and its German subsidiary (together “Defendants”), that the application and use of a “T” consisting of five dots in combination with various Telefónica company symbols (e.g. shown below left and middle) (“Contested Signs”) constitute an infringement of the well-known “T-brand” (shown below right) (EUTM 215194 ; DE 39529531) of Deutsche Telekom (“T-Trade Mark”).

Telefónica company symbol (Contested Sign (1))

Telefónica company symbol (Contested Sign (2))

Deutsche Telekom “T-Trade Mark”

The Court found that there was a likelihood of confusion between the opposing signs, confirmed that the “T”-brand has a reputation within the meaning of Art. 9 (2) lit. c) of the EU Trade Mark Regulation (Regulation (EU) 2017/1001), and therefore concluded that the defendant’s trade mark infringes the claimant’s trade mark rights resulting in the grant of a preliminary injunction (“PI”).

New Guidance for Digital Content Creators’ Metadata from the U.S. Court of Appeals

Dec 21 2022

The Court of Appeals for the Eleventh Circuit recently held that merely removing copyright management information (CMI), without showing that that defendant knew or would have reason to know that its actions would induce, enable, facilitate, or conceal a copyright infringement is insufficient to meet the Digital Millennium Copyright Act’s (DMCA) requirements for liability for wrongful removal of CMI.¹

CMI typically consists of items such as title and authorship. In the digital world, CMI frequently is provided in metadata, essentially background technical data about a digital work. Metadata is a set of data that describes and provides information about other data. CMI typically is included in the metadata embedded in photographs, videos, documents, and other digital media. When distributing a digital work, the metadata, including CMI, may be altered in the course of reformatting the work, typically to reduce the size of the work.

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