Never Too Late: if you missed the IPKat last week!

The 209^th edition of Never Too Late is out! Waste no time catching up with The IPKat’s recent insights!

Copyright

Kat Eleonora Rosati analyses  the  Advocate General’s  opinion in Pelham and Others, C-476/17,  which  was referred to the CJEU by the German Federal Court of Justice. A longstanding and complex litigation in Germany addressed an unauthorized sampling of a 2-second rhythmic sequence. The CJEU is asked whether a phonogram sampling an earlier phonogram is a copy  within the meaning of Article 9(1)(b) of the Rental and Lending Rights Directive.  BREAKING: AG Szpunar advises CJEU to rule that unlicensed sampling MAY be a copyright infringement and German free use may be contrary to EU law.

In a follow-up post, Eleonora dives deeper into AG’s reasoning analysis. The AG Opinion in Metall auf Metall: it's not a fundamental rights violation to say that sampling requires a licence. AG addressed the concept of 'reproduction in part' in Article 2 of the InfoSoc Directive and whether it should be intended as also encompassing the taking  part of a phonogram for inclusion in another phonogram. Also,  can a phonogram that contains the sample  be regarded as a 'copy' of the first recording within Article 9(1)(b) of the Rental and Lending Rights Directive? And finally, under Article 13 of the EU Charter of Fundamental Rights,  is  copyright protection in the phonogram  trumped by the need to safeguard the freedom of (artistic) expression of the person who does the sampling?

The newly appointed  AG Gerard Hogan, from Ireland,  has recently issued an Opinion in another German case, VG Media, C-299/17, relating to the enforceability of the German press publishers' right. The AG has advised the CJEU to rule that the German Government failed to notify the Commission as  required for a 'technical regulation' under Article 8(1) of Directive 98/34, and that such failure to comply with this obligation means that the right is unenforceable. Eleonora Rosati reviews: AG Hogan advises CJEU to rule that German press publishers' right is unenforceable.

Book Review Editor Hayleigh Bosher attended the ERA annual Conference on EU Copyright Law in Trier, Germany on the 22nd and 23rd November. The event involved two days of discussions focused on EU copyright reform as well as the interplay between copyright and fundamental rights. Here are  Hayleigh’s highlights from the event: EU Copyright Reform, Fundamental Rights & Life as CJEU Judge at the ERA Copyright Conference

Trade Marks

There can never be too much purrple

GuestKat Rosie Burbidge has published the third and final post in the series on the Second Brand Protection Conference in Frankfurt. The post reflects on Mette Andersen's talk about the LEGO brand protection experience and lessons learned within the LEGO Group: Building a Long Term Brand Protection solution - the Lego story [Part 3]

Rosie  reviews an appeal filed against The Comptroller General of Patents Designs And Trade Marks, which concerned Cadbury's attempt to amend the description of the mark that consists of the colour purple: Whole visible surface or predominant colour? Cadbury's plays spot the series mark.The  High Court of England and Wales denied the appeal.

Kat friend Samuel Wee from Yusarn Audrey provides a helpful discussion on a recent decision of the Singapore High Court involving the "Monster" mark. The court provided guidance on how to treat a word that is arguably the dominant portion of a mark and, in particular, when that word is the subject of a registration by another party. Trade marks: the limits to a MONSTER’s reach in Singapore.

Patents

Katfriends  Charlie French (one of this year's Young EPLAW mock trial award winners) and Edward Nodder of Bristows report on EPLAW’s annual congress, which was held in Brussels and presented an engaging debate on the latest issues and developments in European patent law. EPLAW Congress Report: Who has the better patent litigation tools in Europe?

IPR Carousel

Kat friend (and tennis aficionado) John Shaw offers his views on the most notable IP issues that arose during the 2018 tennis season. IP-oriented tennis buffs include the design right in Serena Williams’ super-hero style catsuit outfit at French Open, the sponsorship implications for re-naming the grass court tournament at Queens Club and the trade mark issue of Roger Federer’s “RF” logo. Tennis in 2018: Did intellectual property hold serve?

In Polish Constitutional Tribunal declares provision transposing right of information partly unconstitutional, Katfriend Bohdan Widła discussed whether the right of information, which is provided for in Article 8(1) of the Enforcement Directive, is compatible with the values that Poland recognises in its constitution. The Polish Constitutional Tribunal has ruled that this might not always be the case.

Book Reviews

Authored by Michael Tappin QC, Daniel Alexander QC, Charlotte May QC, Adrian Speck QC, Iona Berkeley, Lindsay Lane, James Whyte, Quentin Cregan, Jaani Riordan, Isabel Jamal, Ashton Chantrielle, Maxwell Keay and Tom Jones and spread over two volumes, Laddie, Prescott and Vitoria: The Modern Law of Copyright Fifth edition, is  essential reading for any  copyright practitioner. GuestKat Rosie reviews: Book Review: The Modern Law of Copyright AKA Laddie, Prescott and Vitoria.

Book Review Editor Hayleigh Bosher writes about Giancarlo Frosio's (Université de Strasbourg) book, which thoroughly and thoughtfully examines the history of (mostly western) cultural history from cave art to digital remix in order to demonstrate the conflict between traditional cumulative creativity and modern copyright policy.  Book Review: Reconciling Copyright with Cumulative Creativity

Weekly Roundups:  Never Too Late; and Around the IP Blogs!

Image Credits: megipupu

PREVIOUSLY ON NEVER TOO LATE

Never Too Late 208 [Week ending 9 Dec] Commercial use of image rights: Paris Tribunal boosts models and performers’ protection | General rules on direct and indirect liability for copyright infringement instead of Art. 13 | Double trouble: fresh CJEU reference from Swedish Supreme Court regarding scope of communication to the public inside cars | BREAKING NEWS: The first Counterfeit and Piracy Watch List has been published! | First blocking orders issued in Greece ... but how effective are they? | ECtHR rules that prohibiting linking to defamatory content might be freedom of expression violation: what implications (if any) for copyright? | Protecting reggae – Cultural heritage needs IP | Revenge porn: …still no IP rights in sight | BREAKING: TBA decides that Rule 28(2) EPC, excluding plant products produced by essentially biological processes from patentability, is void | ”Baby you can drive my car” period is over. Welcome the Self-driving vehicles | Brand Protection - fresh perspectives from a Frankfurt conference [Part 1]; and Brand Protection Conference [Part 2] | New joint IPKat/BLACA event! The topic is ... Copyright and Artificial Intelligence | Book review: Copyright law and derivative works

Never Too Late 207 [Week ending 2 Dec] draft Directive on copyright in the Digital Single Market: Contractual override and the new exceptions in the Copyright in the Digital Single Market Proposal | Venice court tackles copyright protection for architectural works as applied to yachts | Marrakesh Treaty is no paper tiger: EU Commission sues 17 countries for non-compliance | Give Africa its cultural heritage back … But keep its digital cultural heritage? | The IP term (thus far) of the millennium: the curious story of the adoption of "patent troll" and "internet trolling" | No pain, no gain: Plausibility in Warner-Lambert v Actavis | Testing the boundaries of subjectivity: Infringement of Swiss-type claims in Warner-Lambert v Actavis | Is SPINNING generic? EU General Court explains how the relevant assessment is to be undertaken | High Court employs ‘intention to target’ approach to determine application of EU/UK law in online trade mark infringement case | There's a new IPO report on designs infringement - game-changer or stating the obvious? | Thursday Thunders

Never Too Late 206 [Weeks ending 18 and 25 Nov] BREAKING: CJEU says NO to copyright in the taste of a cheese | The Levola Hengelo CJEU decision: ambiguities, uncertainties ... and more questions | Enforcing copyright in government documents? Not as uncommon as one might think | Linda Nochlin, "Why Have There Been No Great Women Artists"? Relevant as ever, controversial as ever, | Buyers beware! …You may owe re-sale right royalties | BREAKING NEWS: Supreme Court unanimously dismisses Warner-Lambert's painful Lyrica appeal | Why is this Kat laughing (hint: it's all about his blue shirt)? | AIPPI Rapid Response event - Unwired Planet (Court of Appeal decision) | Take your seat at the Bench: an evening with the IP/tech judges | General Court annuls Delegated Regulation 665/2013 on energy labelling of vacuum cleaners | Book review: Artist, Authorship & Legacy: A Reader | Book review: Cross-Border Copyright Licensing: Law and Practice

Never Too Late 205 [Weeks ending 4 and 11 Nov] Chinese Supreme Court: hoarding trade marks in bad faith falls within scope of “illegitimate means” | 3-second cinematic sequence sufficiently distinctive to be a trade mark, says EUIPO Fifth Board of Appeal | 'Winter Is Coming' vs 'Sanctions Are Coming': a 'trademark misuse' also in languages other than Dothraki? | Auctioning Art(ificial Intelligence): The IP implications of Edmond de Belamy | Report from 2018Annual Meeting of the European Policy for Intellectual Property Association | The drumbeat gets louder: is anti-competitive conduct trumping innovation as the foundation for high tech dominance? | Criminal conviction over disparaging religious doctrines not a violation of freedom of expression: potential IP implications of the latest ECtHR ruling | Event Report: Trade Mark Conference 2018 | What can be the main events in the life of a copyright work in Europe? Here's another map | Complicating designs: whither the EU reforms, and what impact will Brexit have? | Book Review: Kerly’s Law of Trade Marks and Trade Names | Thursday Thingies | Around the IP Blogs