Never too late: if you missed the IPKat last week!

Catch-up with everything IP! Edition 179 of Never Too Late is here to recap last week’s highlights on IPKat (week ending 21 January)

Trade marks 

Are we going to see less conventional trade marks now that the EU trade marks system has been reformed? Katfriend Guido Noto La Diega (Northumbria University) provides an overview of the issues surrounding olfactory marks in the EU and UK: Scents and trade marks - The EU reform of olfactory marks and advances in odour recognition techniques.

Trade mark for a fabric pattern?

Continuing with trade marks, GuestKat Mathilde Pavis reports on the ‘Atout France’ decision: French government claims back « France.com » (as trade mark and domain name). The French government (represented by the public ‘Atout France’ and the French Ministry of Culture) disputed the registration by a private US company, France.com Inc, of a series of trade marks using the word “France.com”. The French court of appeal cancelled the French marks and assigned the name domain « France.com » to the State of France. France.com Inc has appealed the decision to the French Supreme Court.

As reported by GuestKat Nedim Malovic here, the appeal branch of the specialist Swedish IP court has stayed infringement and validity proceedings on EU trade mark (EUTM) "Manhattan" and referred to the CJEU the question of the intended meaning of "shape, or another characteristic, which gives substantial value to the goods" of Article 7(1)(e)(iii) of the EU Trade Mark Regulation as amended by Regulation 2015/2424. In particular, the Swedish Court asks whether Article 7(1)(e)(iii) should now be interpreted as meaning that its scope covers signs consisting of the two-dimensional representation of a two-dimensional product, including a fabric.

Copyright

The Council of the European Union is now Bulgarian. Kat Eleonora Rosati considers what this might mean for the Directive on copyright in the Digital Single Market, proposed by the EU Commission in September 2016: New presidency of the Council of the European Union ... new position on the EU copyright reform? 

IPKat also asks the question "can someone's own image be used without their permission?": Image rights and the unauthorized use of one's own portrait on cigarette packs, and reports on the case of Maurizio Plescia, whose image was reproduced on cigarette packs marketed by different multinationals as a health warning, without his knowledge.  

Patents

Smoothly seqwaying across patents, GuestKat Frantzeska Papadopoulou highlights the interesting revisions in the new Guidelines for Examination of the EPO (valid from 1st of November 2017) to the section relating to claims based on presentation of information: Presentation of information: Is the EPO stretching the line for patentable subject-matter, again? 

The UCL debate on the UK Supreme Court decision Actavis v Eli Lilly ("Equivalents: K = Na. Is the genie out of the bottle?", reported on IPKat here and here), was the hottest ticket in town last year (at least for those interested in patent law). Attendees will recall the comment by Judge Kathleen O'Malley of the US Court of Appeals for the Federal Circuit, that had the Actavis case come before a US court, the case would have been fairly clear cut, as the argument on equivalents would not have survived US prosecution file history estoppel. GuestKat Eibhlin Vard considers what Actavis v Eli Lilly may mean for file wrapper estoppel in the UK, and to what extent patentee, and even inventor evidence, may become relevant in determining matters of equivalence: "Prosecution history - as relevant as any inventor evidence?". Are the famous words of Lord Hoffman in Kirin-Amgen that "life is too short" to consider the file, soon to ring hollow?

Is life now long enough for UK file wrapper estoppel?

IP fun!

Be sure not to miss the UK IPO's new cartoons for teaching IP to kids! reported here by IPKat. Do your children know the difference between copyright and trade marks? Big Joe,  Nancy and Meerkats are here to help, with the aid of the "sneaky snuggle puss" Kitty Perry. Even patents get a look-in: is the hum bone an amazing new invention that is going to make the team a squillion pounds?


Author: Rose Hughes

PREVIOUSLY ON NEVER TOO LATE

Never too Late 178 [week ending 14 January] A Merck-y appeal is remitted to the High Court | Into fashion law? Here's a call for papers for JIPLP special fashion law issue | When two minds became one (at least for a while): the collaborative genius of Daniel Kahneman and Amos Tversky | French Supreme Court in Finasteride second-medical use litigation acknowledges patentability of dosage regime claims | Alibaba released the 2017 Annual Report on Intellectual Property Protection | Córdoba - The CJEU to re-visit the Right of Communication to the Public | Swedish Supreme Court confirms that domain names constitute property that can be seized by the state | Multilateralism v Bilateralism: What’s in it for international IP regulation?

Never Too Late 177 [week ending 7 January] Unwired Planet American style in TCLv Ericsson | Supreme Court of India in Prius trade mark battle declare that evidence of reputation spillover must be explosive and Has the Indian Supreme Court Moved the Bad Faith Analysis to the Back Seat? | AIPPI Event Report: Unjustified threats - are you threatening me? | The ethics of Artificial Intelligence - the next step? | The IPKat team: arrivals, farewells, and news | "Stars" on the football field; less so in the Trademark Office? | German ‘hate-speech’ law tries to regulate Facebook and others - will it work? | Brands and ecommerce platforms: a tainted relationship? | Brussels court in FN Herstal v Heckler & Koch wrestles with combination invention v mere aggregation of features | Brexit: requests to Govt from IP professional bodies | Street heart: urban murals as common goods | Have your say on the UK implementation of the EUPortability Regulation: public consultation now open!

Never Too Late 176 [week ending 31 December] Can the Buddhist notion of Bodhi be appropriated as a trademark? | Book Review: Intellectual Property in Australia | This Kat will be a JudgeKat and bids farewell | Congratulations to Sean Dennehey! | AIPPI Event Report: Are you sitting comfortably....? Patent Roundup 2017

Never Too Late 175 [week ending 24 December] Linking for profit, technical means and burden of proof - German BGH applies CJEU case law to Google’s Image Search | Release by IP Australia of draft of legislation for partial implementation of Federal Government's response to Productivity Commission final report | Rainier days ahead for Starbucks as it loses trade mark opposition in Singapore | Females and felines in intellectual property law | CJEU rules that ice cream sold as ‘Champagner Sorbet’ can be branded as ‘Champagne’ | A Kat's 2017 Copyright Awards

Never Too Late 174 [week ending 17 December] The first modern blockbuster IP merchandising campaign? Disney, Davy Crockett and the coonskin cap I UPC - update from UK on statutory instruments I The ILO rules reinstatement of Board of Appeal member, but EPO resists I INTA calling: The 2018 Ladas Memorial Award competition for paper on a trademark subject I R 0003/15: surprising interpretation of feature violates right to be heard I Germany: Bundespatentgericht annuls Nespresso capsule shape mark I Wind in the sails for atypical trade marks in the EU - graphical representation following the recent EUTM reforms I Coty, distribution agreements and luxury brands I Around the IP Blogs! I Monday Miscellany