European Union Trade Mark law: 10 key changes you should know about
On 23 March 2016 Regulation (EU) No. 2015/2424 entered into force, and with it the most significant changes to EUTM law since the unitary EU-wide trade mark system was introduced back in 1996.
Here we outline the 10 most important changes that all companies should be aware of:
1. Name Changes: the name of the unitary EU-wide trade mark has changed from the Community Trade Mark (CTM) to the European Union Trade mark (EUTM). In addition, the name of the EUTM Registry has changed from the Office of Harmonisation in the Internal Market (OHIM) to the European Intellectual Property Office (EUIPO).
Further to an application for judicial review, the High Court has quashed the private copying exception – meaning that from July 17 2015, private copies of content made for personal use are no longer exempt from copyright law. This means that an individual who makes a digital copy of legally acquired music infringes copyright.
What is the private copying exception?
In October 2014 the Copyright and Rights in Performance (Personal Copies for Private Use) Regulations 2014 (SI 2014/2361) introduced the following private copying exception in the United Kingdom:
"The making of a copy of a work, other than a computer program, by an individual does not infringe copyright in the work provided that the copy:
Following on from our post back in June, Linking: looking past Svensson, this post focuses on the recent European Court of Justice (ECJ) decision in BestWater (Case C-348/13) regarding embedded videos (available in French and German, but not yet in English).
In Svensson the court considered linking and framing, and held that providing links does not constitute communication of the underlying works to the public, as these were freely available online; thus, providing links does not communicate the works to any ‘new public’.
The question in BestWater was similar:
"Does the embedding, within one's own website, of another person's work made available to the public on a third-party website, in circumstances such as those in the main proceedings, constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC, even where that other person's work is not thereby communicated to a new public and the communication of the work does not use a specific technical means which differs from that of the original communication?"
If registered designs are seen as being difficult to enforce, unregistered designs prove even less popular. By their very nature they are hard to pin down, meaning that proving validity can be a hurdle for designers before they even come to enforcement.
Designers will therefore welcome the European Court of Justice’s (ECJ) recent decision in Case C-345/13, Karen Millen Fashions Ltd v Dunnes Stores (available here), which reminds us that unregistered designs can be an effective means of protecting new designs. In particular in the fast-paced world of fashion, where collections turn over at such a rate that there is often not time to register IP rights, the ECJ’s guidance on how to assess a design's ‘individual character’, and confirmation that those wishing to enforce unregistered Community design rights are not required to prove individual character, is good news for designers.
A reminder on designs
In a vintage year of sporting mega events, Paul Jordan, consulting editor to International Advertising Law, speaks to Globe Law and Business about the challenges of getting advertising right on a global scale and his experience advising brands making the most of the hype during the 2012 Olympic Games.
With a number of pending cases before the European Court of Justice (ECJ), and its recent decision in Svensson and its decision in Meltwater hotly anticipated on June 5, we thought this would be a good time to round up the case law on linking and ask whether the ECJ has resolved this particular quirk of the application of copyright online.
We begin with Svensson, a case which was brought by a number of Swedish journalists against a media monitoring organisation, Retriever. Retriever provided links to websites hosting content which had been written by the journalists. The journalists argued that the provision of these links constituted a communication to the public, and thus infringed Article 3 of the EU Information Society Directive. The Swedish court referred four questions to the ECJ, which held as follows:
In short, provision of a link does not constitute a communication to the public, as long as the content subject to the link is already freely accessible online.
Contrast this with the position in ITV v TVCatchUp, where the ECJ held that by capturing television broadcasts (which were freely available to anyone with a television licence) and retransmitting the content over the Internet, TVCatchUp did communicate broadcast works to the public. The difference seems to be that the broadcasters had never intended their content to be viewed online, whereas the journalists in Svensson plainly always intended their articles to be viewed on the websites which they had authorised.
On February 19 2013 the representatives of 24 EU governments met in Brussels to sign the Unified Patent Court (UPC) Agreement, which creates a court in which future unitary patents and classic European patents can be litigated – effectively, a one-stop shop for participating EU member states. This historic date marks the start of implementation for a project that has kept European lawmakers busy for nearly 40 years. Here we examine the practical achievements of the last 14 months and highlight the challenges yet to be met before the court can open its doors.
The patent reform package
The UPC is part of a bigger package of patent reforms which consists of three linked elements:
Under the current system, the European Patent Convention provides for a centralised application procedure in which the European Patent Office grants bundles of national patents across Europe. Disputes about patents after grant (with the exception of patents opposed at the office within the first nine months) are adjudicated exclusively by national courts.