©-LAW

Every woman's dream red soles Can a colour be considered akin to a shape, so that a sign that consists exclusively of a colour "which gives substantial value to the goods" cannot be registered as a trade mark? As readers might notice, this question should be phrased differently under the new  Trade Mark Directive : Article 4(1)(e) therein prevents in fact registration as a trade mark of any sign that consists exclusively of "the shape, or another characteristic, which gives substantial value to the goods". However the question of whether a colour is to be regarded as a shape (and not just "another characteristic") is because under the 2008 Directive, Article 3(1)(e)(iii) therein prevents  [the general deadline for national implementations of the new directive is 14 January 2019]  registration of any sign which consists exclusively of "the shape which gives substantial value to the goods".  To add further complexity to this i...

The Slants Can signs which are offensive and disparaging be registered as trade marks? Similarly to EU trade mark law, which prohibits registration of signs "which are contrary to public policy or to accepted principles of morality"   [Article 4(1)(f)   Trade Mark Directive ; Article 7(1)(f)   Trade Mark Regulation ] , the US Lanham Act contains a provision that prevents registration of certain signs on similar grounds. More specifically, among other things  §1052(a)   provides t hat " No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it— (a)  Consists of or comprises ... matter which may disparage". Readers will remember that the issue of disparaging trade marks has been at the centre of attention in the US for a while, also following the refusal, by the US Patent and Trademark Office (PTO), to register "THE...

Is there a communication to the public within the meaning of Article 3(1) of the  InfoSoc Directive  by the operator of a website  [The Pirate Bay, TPB] , if no protected works are available on that website, but there is a system therein by means of which metadata on protected works is indexed and categorised for users, so that these can trace and upload and download the protected works? Does Article 8(3) of the InfoSoc Directive allow the issuing of an injunction against an ISP ordering it to block access for its users to an indexing site like The Pirate Bay? These were the important questions that the  Dutch Supreme Court (Hoge Raad der Nederlanden) had referred to the Court of Justice of the European Union (CJEU) in   Stichting Brein v Ziggo , C-610/15   (also known as   The Pirate Bay   case). The AG Opinion In his   Opinion   in February last   [commented   here ,  here , and to some exte...

The late Marc Soulier In late 2016 the Court of Justice of the European Union (CJEU) issued its   decision   in   Soulier and Doke , C-301/15   [commented   here   and   here ] . As readers will remember, this was a reference for a preliminary ruling from the French Council of State, asking the CJEU to clarify the compatibility of the  the 2012  French law  on the digital exploitation of out-of-print 20th century books with the  InfoSoc Directive . As I discussed  more at length  here ,  the new  Chapter IV  in the French  Code de la Propriété Intellectuelle   (CPI) vested  approved collecting societies with the right to authorise the reproduction and representation in digital form of out-of-print books published in France before 2001, while allowing the authors of those books (or their successors in title) to oppose or put an end to that practice subject to certain conditio...

This morning the  Bundesgerichtshof (BGH, the German Federal Court of Justice) has referred not one - but two - copyright cases to the Court of Justice of the European Union (CJEU) for guidance, respectively, on: To what extent EU copyright allows  sampling , ie the taking of part of a sound recording for re-use as an instrument or sound recording in a different song or piece  [readers with an interest in hip-hop will know that sampling in this genre is very frequent and in the US has caused quite a few IP-related headaches to the likes of  Kanye West  and  Jay Z ] ; and What role fundamental rights play in the copyright sphere. More specifically, what is the relationship between copyright protection, freedom of the press, and freedom of information? WARNING: I do not speak German, and have tried to make a sense of these new cases by reading the relevant press releases; please let me know if I have misunderstood anything. Sampling, free use, ...