A taste of things to come: goodies on the menu Luxembourgeois

Soon the Court of Justice of the European Union (CJEU) will shut up shop for the end of year vacation.  The European Union's Olympian judges will, for the most part, leave Luxembourg and spend a few short weeks just being ordinary people again, far from the battlefield of litigation and surrounded by their friends and loved ones.  Before that happy time, the CJEU still has plenty of intellectual property issues to keep it occupied. A swift perusal of the Curia agenda for the next few weeks suggests that the brain cells of Europe's finest will [or at least should, notes Merpel] be stretched to the limit by, among other cases:

* Case C-12/12 Colloseum Holding AG v Levi Strauss & Co., a reference from the Bundesgerichtshof, Germany, gets a hearing next week, on Thursday 29 November. The CJEU will be opining on the following questions:

Is Article 15(1) of Regulation 40/94 [on the Community trade mark, repealed and re-enacted yonks ago by Regulation 207/2009, but still fondly remembered by referring courts] to be interpreted as meaning that: 

1. a trade mark which is part of a composite mark and has become distinctive only as a result of the use of the composite mark can be used in such a way as to preserve the rights attached to it if the composite mark alone is used? 

2. a trade mark is being used in such a way as to preserve the rights attached to it if it is used only together with another mark, the public sees independent signs in the two marks and, in addition, both marks are registered together as a trade mark?

If you want to know what this case is all about, take a moment to thank the AIPPI (the first time this organisation has ever earned a katpat), which has summarised all the facts and legal issues in its position paper here.

* A big attraction on 5 December is a pair of hearings involving Centrotherm, not to be confused with, er, centrotherm: these are Case C-609/11 P Centrotherm Systemtechnik v centrotherm Clean Solutions and Case C-610/11 P Centrotherm Systemtechnik v OHIM and centrotherm Clean Solutions. The first of these cases questions the General Court's approach to "genuine use" and "mere minimal use" of a Community trade mark, as well as raising some burden of proof issues.  The second deals with the evidential value of a sworn statement made by the managing director of the appellant company: is it admissible and, if so, what presumably is its value?

* On Thursday 6 December, judgment will be given in Case C‑457/10 P AstraZeneca AB and Astra Zeneca plc v European Commission. This is an appeal against the General Court's decision in Case T-321/05 that the pharma company had breached EU antitrust provisions in seeking to keep a generic competitor off the market for its products, armed with nothing more than some useful patent rights, a vivid imagination and a determination to apply its own, surprisingly plausible interpretation of some less-than-specific provisions of European law.  The IPKat, recalling here that the General Court's judgment ran to a thumping 920 paragraphs, can see why it has taken nearly two and a half years for this appeal to reach the point at which judgment can be rendered. Merpel wonders how many of this blog's readers were not even conscious of the existence of intellectual property back in 1999, when this action was precipitated by a complaint over AstraZeneca's omeprazole product.

In the olden days, you
could only buy 'recording
media' in black-and-white

* Also on Thursday 6 December, the CJEU hears arguments in (Case C-521/11) Amazon.com International Sales Inc. and Others v Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft m.b.H., in which the Oberster Gerichtshof (Austria) asks more questions about equitable remuneration following the sale of recording media:

"Can a legislative scheme be regarded as establishing 'fair compensation' for the purposes of Article 5(2)(b) of Directive 2001/29/EC, where (a) the persons entitled under Article 2 of Directive 2001/29/EC have a right to equitable remuneration, exercisable only through a collecting society, against persons who, acting on a commercial basis and for remuneration, are first to place on the domestic market recording media capable of reproducing the works of the rightholders,

(b) this right applies irrespective of whether the media are marketed to intermediaries, to natural or legal persons for use other than for private purposes or to natural persons for use for private purposes, and (c) the person who uses the media for reproduction with the authorisation of the rightholder or who prior to its sale to the final consumer re-exports the media has an enforceable right against the collecting society to obtain reimbursement of the remuneration?

If Question 1 is answered in the negative:

2.1 Does a scheme establish 'fair compensation' for the purposes of Article 5(2)(b) of Directive 2001/29/EC if the right specified in Question 1(a) applies only where recording media are marketed to natural persons who use the recording media to make reproductions for private purposes?

2.2 If Question 2.1 is answered in the affirmative: Where recording media are marketed to natural persons must it be assumed until the contrary is proven that they will use such media with a view to making reproductions for private purposes? If Question 1 or 2.1 is answered in the affirmative:

"Give it to us!" cry the social and cultural
institutions. "No, us!" say society members

Does it follow from Article 5 of Directive 2001/29/EC or other provisions of EU law that the right to be exercised by a collecting society to payment of fair compensation does not apply if, in relation to half of the funds received, the collecting society is required by law not to pay these to the persons entitled to compensation but to distribute them to social and cultural institutions? If Question 1 or 2.1 is answered in the affirmative:

Does Article 5(2)(b) of Directive 2001/29/EC or other provision of EU law preclude the right to be exercised by a collecting society to payment of fair compensation if in another Member State - possibly on a basis not in conformity with EU law - equitable remuneration for putting the media on the market has already been paid?"

Italy and Spain: now on
the same side?

* On Tuesday 11 December, the Advocate General [or possibly more than one ...?] gives a keenly-awaited Opinion in Joined Cases C-274/11 and C-295/11 Spain v Council and Italy v Council.  These, readers may recall, are the actions which challenge the legality of legislating unitary patent law for just 25 of the 27 EU Member States.