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Catch-up with the latest developments in IP, with the 200th edition of Never Too Late! This week's highlights include a report on algorithmic fashion and a perspective on the KitKat shape-mark case.  GuestKat Mirko Brüß reports on the latest referral from the German Federal Court of Justice (FCJ) to the CJEU, on the questions of platform liability and the right of communication to the public. The case, which has been going on since 2009, concerns a lawsuit between the music producer Frank Peterson and YouTube (and Google). Peterson is seeking damages from YouTube and Google because certain videos remained available on YouTube, even after Peterson had asked the platform to remove the content:  BREAKING: FCJ refers case regarding YouTube’s liability for damages to the CJEU . Kat Eleonora Rosati   explores the growing trend for fashion houses to produce garments that consumers already want, so called "algorithmic fashion". Eleonora considers how this is achiev...

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...