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What happens behind the scenes? In the IP field, the role of the Court of Justice of the European Union (CJEU) has gained increasing centrality over time. In certain instances, the Court has even pushed harmonization beyond the very wording of relevant EU directives and contributed substantially to shaping and construing key concepts. All this has certainly been true in the copyright field, where Opinions of Advocates General (AGs) and CJEU decisions in referrals for a preliminary ruling are keenly  [yes!]  awaited. But what happens behind the scenes, not just when the judges of the CJEU decide on a case but even before that, when relevant parties and interveners participate in proceedings and submit their observations to the Court, proposing - similarly to what an AG does - their own responses to the questions referred by a national court? Usually, this is just a big black box: regrettably, in fact, there is no requirement for observations filed...

G-Star Elwood, a style of jeans that G-Star claims Cofemel to have copied in the background  Portuguese  proceedings As  announced  on The IPKat, last week the Court of Justice of the European Union (CJEU) issued its Cofemel , C-683/17   [not yet available in English] . It ruled that, as far as designs are concerned, no other requirement is mandated for copyright protection to arise under the  InfoSoc Directive , but the sufficient originality of the design at issue. much awaited judgment in  Earlier case law  The ruling is not surprising, considering earlier CJEU case law, most notably the decision in  Flos , C-168/09 . This was a reference from Italy asking about the compatibility with EU law of certain Italian provisions that the Court of First Instance of Milan had deemed potentially incompatible with the principle of cumulation envisaged under EU law. The Italian approach to copyright protection of designs has been traditi...

Is it possible or not to create second-hand digital marketplaces for, say, audio and ebooks, digital music, games, etc? This is the question at the heart of the referral to the Court of Justice of the European Union (CJEU) in  Tom Kabinet , C-263/18   [ here ] . As readers know, the CJEU has already found - in  UsedSoft  - that there is such thing as 'digital exhaustion' in relation to software under the  Software Directive . However, that piece of legislation is both  lex specialis  and has a rather narrow field of application (for instance, it does not cover videogames, as the CJEU clarified in  Nintendo ). Hence, in the aftermath of the  UsedSoft  ruling, it has remained unclear whether the same consequences envisaged in relation to the first lawful sale of the copy of a computer program could extend to subject matter protected under the  InfoSoc Directive . Certain national courts have attemp...

Will this Kat be competent to judge? When it comes to determining international jurisdiction in proceedings resulting from the alleged online infringement of an EU trade mark, where is the place of infringement, as per Article 97(5) of the  2009 EU Trade Mark Regulation  (EUTMR, now Article 125(5) of the  2017 Regulation ), located?  This was the question at the heart of the referral in  AMS Neve , C-172/18 , which the Court of Justice of the European Union (CJEU) decided today.  More specifically, the question referred by the Court of Appeal (England and Wales) related to a situation in which the defendant is established and domiciled in Member State A (in this case, Spain) and advertised and offered for sales infringing goods on a website targeted at traders and consumers in Member State B (in this case, the UK). Could courts in Member State B have jurisdiction to hear a claim for infringement of an EU trade mark?  I...