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This evening, it was the annual IBIL and MARQUES event - Question the Trade Mark Judges   this time in UCL's snazzy new lecture theatre. This year the judges were: HHJ Melissa Clarke (Senior Circuit Judge, Designated Civil Judge for Thames Valley, Beds & Herts) Judge Octavia Spineanu-Matei (General Court, Court of Justice of the European Union) The Hon Mrs Justice Vivien Rose Harri Salmi (EUIPO Boards of Appeal member) The debate was meant to be chaired by The Rt Hon Professor Sir Robin Jacob but due to various transport related delays, Roland Mallinson stepped into the breach for the first half. Both chairs posed a set of pre-selected questions from the audience. A quick plug from MARQUES Before things kicked off, Roland Mallison gave a short plug for MARQUES' amicus curiae team. If readers have any cases where it might be helpful to have MARQUES' input, they should get in touch. How much training is required to become a judge? The judges all had very different backgro...

The face of someone keen to share their Wi-Fi password ... What can be the nature of the penalties and measures to be taken in copyright infringement cases? More specifically:  Is it compatible with EU law to provide that the owner of an internet connection, through which copyright infringements have been committed, may escape liability thereof by indicating, without the need to provide any further details, a family member who has also had access to such connection? These were the issues at the centre of Bastei Lübbe , C-149/17 , a reference for a preliminary ruling from Germany. Background The referral was made in the context of litigation between Bastei Lübbe, a German phonogram producer, and Michael Strotzer, the owner of an internet connection through which an infringement was committed in 2010.   The latter submitted that he had not committed the infringement himself and that his internet connection was sufficiently protected. He also argued that his parents, with whom he...

The AIPPI Congress started in earnest on Monday morning.  Although many were already lamenting the cruelty of those who decided to hold an IP conference on a beach resort, it was not enough to pull them away from the start of the panel sessions.  One of the most popular was the copyright session on the balancing exercise between copyright and other rights.  First time attendee (and the UK Group's prize winner), Sarah Blair ( Bristows LLP ) was at the helm ready to report on the session for the IPKat.  Sarah reports as follows: The AmeriKat's fleeting Sunday night view " Jan Bernd Nordemann ( Boehmert & Boehmert ) chaired a panel session to discuss the means by which copyright laws in different jurisdictions seek to achieve balance between copyright and other rights and interests. Irely Aquique ( Mexican Institute of IP ) spoke about the Mexican Institute of Industrial Property’s (IMPI) approach to this issue (for which she is the Director of IP Enforcement)....

The KitKat trade mark (as reported in the CJEU decision - the photocopier has not been kind) By now, the fate of the four fingered KitKat shape mark is old news -  Joined Cases C‑84/17 P, C‑85/17 P and C‑95/17 P   R umours of the mark’s death have been greatly exaggerated - it is now for the EUIPO to reconsider the evidence in light of the CJEU's ruling and reach a decision as to whether or not the mark is valid. Whilst the press may have put the cart before the horse, the CJEU’s decision does suggest that the mark will not remain registered long term. But this case has stickier and more sickly consequences for EU trade marks than a single chocolate bar. The real question is... What does this mean for acquired distinctiveness in the EU? It is not disputed that the shape mark (see above) is not inherently distinctive. Therefore, in order to avoid the mark being invalidated, Nestle had to show that it had acquired distinctiveness through the use that had been made of it in a suf...

A lawsuit between music producer Frank Peterson and YouTube (and Google) that has been ongoing since 2009 did not come to an end today. The German Federal Court of Justice (FCJ) decided to stay the proceedings and refer several questions to the CJEU, regarding (once again) the question of platform liability and the right of communication to the public . the new YouTube logo Peterson is seeking damages from YouTube and Google because videos containing recordings of German singer Sarah Brightman were available on YouTube, even after Peterson had asked the platform to remove all such content. Both the Regional Court of Hamburg and the Higher Regional Court of Hamburg rejected Peterson’s claims, arguing that YouTube did not commit acts of communication to the public and was protected by Art. 10 TMG (the German Telemedia Act, which implements Art. 14 of the E-Commerce-Directive). The FCJ now referred the following questions to the CJEU (case No. I ZR 140/15) [ please note that this is a Ka...

Kat on the beach Right before the summer break, on 7 August last, when most people had already turned their out-of-office auto-reply on or were getting ready to move to the beach, the Court of Justice of the European Union (CJEU) issued quite an interesting ruling -  SNB-REACT , C-521/17  - concerning enforcement of IP rights under Article 4(c) of the  Enforcement Directive  and the availability and scope of the safe harbours under the  E-Commerce Directive . Background This referral from Estonia was made in the context of proceedings that a collecting society, SNB-REACT, had initiated against an individual, Deepak Mehta, concerning the latter's alleged liability for infringement of the IP rights of 10 trade mark owners.  According to SNB-REACT, Mehta had allegedly registered a number of IP addresses and internet domain names, which  unlawfully used signs identical to the trade marks owned by SNB-REACT members, together with websites unlawfully offerin...