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AG Øe advises CJEU to rule that Article 17 is COMPATIBLE with the EU Charter of Fundamental Rights and should not be annulled

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AG Saugmandsgaard Øe Is Article 17 of   Directive 2019/790   (DSMD) compatible with the   EU Charter of Fundamental Rights , notably its Article 11 and the principle of freedom of expression and information? According to Poland, the answer should be in the negative.  Indeed, shortly after the adoption of the Directive in 2019, this country lodged a complaint ( C-401/19 ) before the Court of Justice of the European Union (CJEU), seeking the partial or - as a subsidiary claim - complete annulment of the provision. This morning, Advocate General (AG) Saugmandsgaard Øe released his  Opinion , advising the Court to rule that Article 17 is compatible with the Charter and should not be annulled. All this is true insofar as the monitoring obligations of online content sharing service providers (OCSSPs) are circumscribed by sufficient safeguards, which the provision itself contains, so to minimize the impact of the resulting filtering activities on users’ freedom of expression and information.

General Court rules that shape of Guerlain's Rouge G lipstick case can be registered as a trade mark

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  Can the shape of a lipstick case function as an indicator of commercial origin? The answer is yes when such case is the iconic and immediately recognizable (at least to lipstick lovers!) one of   Rouge G de Guerlain : Today, also the General Court did agree in its judgment in  T-488/20  Guerlain   [currently only available in French] . The judgment (correctly) reverses the earlier, contrary decision of the EUIPO First Board of Appeal ( 2292/2019-1 ). Background In 2018, Guerlain applied to register the 3D sign represented above (left-hand side) for “lipsticks” in Class 3. The EUIPO examiner rejected the application considering that the sign would lack distinctive character, in accordance with Article 7(1)(b)  EUTMR . The subsidiary claim of the applicant under Article 7(3) EUTMR (acquired distinctiveness) could be examined once the decision became final. Guerlain unsuccessfully appealed.  The EUIPO Board considered that the shape applied for would not depart significantly from the no

CJEU rules on platform liability under copyright law, safe harbours, and injunctions

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  Do platforms like YouTube and cyberlocker Uploaded directly perform copyright-restricted acts under Article 3 of the   InfoSoc Directive ? At what conditions is the hosting safe harbour under Article 14(1) of the   Ecommerce Directive   available? What may be the requirements for injunctions under Article 8(3) of the InfoSoc Directive? These are some of the questions that the German Federal Court of Justice had referred to the Court of Justice of the European Union (CJEU) in two separate cases, which were subsequently joined:  YouTube , C-682/18 and  Cyando , C-683/18. The  Opinion  of the Advocate General (AG) Øe was issued a little less than a year ago  [Katpost  here ] . This morning, the Grand Chamber of the CJEU delivered  its much-awaited ruling . Here are a couple of immediate impressions: First, unlike the AG, the CJEU was cautious not to venture into any analysis of the regime under Article 17 of the  DSM Directive   vis-à-vis the InfoSoc Directive. Instead, it was adamant t

CJEU rules on seeding, trolls, and interplay between copyright enforcement and data protection rules

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  Back in 2019, The IPKat   reported   on a referral from Belgium –   Mircom , C-597/19 – asking the Court of Justice of the European Union (CJEU) to clarify the treatment of (i)   seeding   under the   InfoSoc Directive   and (ii) ‘trolls’ under the   Enforcement Directive , as well as the interplay between copyright enforcement and data protection law ( GDPR ). Earlier this week, the Court issued its  ruling , substantially endorsing the earlier  Opinion   of Advocate General (AG) Szpunar. Background Also Bluebell received a worrying request for damages in connection with some suspicious online activities ... Mircom is a Cypriot company holding rights (as an assignee) to several pornographic films. It is seeking an order from the Antwerp Companies Court against Belgian ISP Telenet that would allow it to identify the latter’s customers whose internet connections have been used to share illegal copies of Mircom’s films through seeding. Via other companies, Mircom has collected thousand

Commission unveils Article 17 Guidance: 3 highlights

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  Today, after several months of waiting and with the deadline for the national transposition of the   DSM Directive  being just a weekend away (it will be on Monday, 7 June), the European Commission has issued its   Guidance on the application of Article 17 .  Here are 3 key highlights: Article 17 not a  sui generis  right of communication to the public An actual  sui generis  Kat First, the Guidance takes a different view from the  one  provisionally expressed in September 2020. It states that Article 17 is  lex specialis  to the  InfoSoc Directive , but also that the provision does not create a special/ sui generis  right of communication to the public compared to the one already contained in Article 3 of the latter: Article 17 does not affect the concept of communication to the public or of making content available to the public elsewhere under Union law, nor does it affect the possible application of Article 3(1) and (2) of Directive 2001/29/EC to other service providers using cop

Can Amazon be directly liable for trade mark infringement? A new CJEU referral

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  Is it a trade mark infringement to, e.g., advertise, offer, stock and ship goods carrying a sign identical or similar to a registered sign? The answer is not a difficult one to provide: Articles 10  TMD   and 9  EUTMR  clearly indicate that these activities amount to  prima facie  infringement. Things, however, get more complicated when the same question is asked with reference to an online marketplace, e.g., Amazon. Can such a platform be regarded as playing an active role and be directly liable for trade mark infringement if what is being promoted, sold, stocked and shipped through it is a counterfeit item? This, in a nutshell, is the key issue at the heart of the very interesting referral to the Court of Justice of the European Union (CJEU) in  Louboutin , C-148/21  (there is also another trade mark case concerning Louboutin,  C-184/21 , but the relevant questions are not yet available). This referral from Belgium was made in the context of proceedings that the famous red sole tra

Linking after VG Bild-Kunst ... in a table

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  A week ago, The IPKat   reported and commented   on the important   decision   of the Grand Chamber of the Court of Justice of the European Union (CJEU) in   VG Bild-Kunst , C-392/19.  In that judgment, the CJEU admitted the possibility for rightholders to restrict linking  by contract , provided that any such restrictions are imposed and/or implemented through the adoption of effective technological measures, in accordance with Article 6(1) and (3) of the  InfoSoc Directive . According to the CJEU, this requirement - which, as I wrote, might raise questions of compatibility with the no formalities rule in the  Berne Convention  - is prompted by the need to "ensure legal certainty and the smooth functioning of the internet". Readers may be aware that, over the past few years, I have developed IP and study aid materials (they can all be accessed  here ) primarily aimed at my students. Among them, there was a table - first published on The IPKat  here  - summarising the treat