Around the IP Blogs!

Snuggled in its cosy duvets, IPKat has been busy browsing the web. Here’s the latest and greatest from IP blogland last week: interviews and case analysis from both sides of the pond. Indulge yourselves in the autumn delights Kat friends!

Hibernation in progress

Patents

IPWatchdog has interviewed Roberta Romano-Götsch, the chief operating officer of Mobility and Mechatronics at the European Patent Office (EPO). Ms. Romano-Götsch has responsibility for leading 1,600 patent examiners, managers and administrative staff members in Munich and The Hague. In addition to leading Mobility and Mechatronics, she is also chair of the EPO’s Operational Quality Committee. The interview dealt with such issues as the new technology areas at the EPO, autonomous driving, engineering education, examiner training, and what quality means to the EPO.

Kluwer Patent Blog considers the issue of the date when a claim for patent infringement becomes “time-barred”. The traditional position adopted by the courts in countries like Germany and Spain is that in the case of continuing acts of infringement, the time-barred period (e.g. 5 years in Spain) does not start running until the last act of infringement has ceased. The Spanish Supreme Court, in a case dealing with a registered plant variety, referred the questions to the CJEU, asking for guidance on the interpretation of Article 96 of the “Plant Variety Regulation” (Regulation 2100/94). This Article provides for a 3 or 30 year term for claims to be barred, depending on the existence of right holder’s knowledge of infringement. It remains to be seen if and how the CJEU will approach the issue in the context of substantive patent law.

Patently-O publishes an interview with Prof. Ned Snow (SC) who has written extensively on the interplay between free speech and intellectual property rights. His most recent article is titled Denying Trademark for Scandalous Speech.

Copyright

Earlier this year, the Court of Appeal of Milan upheld a 2015 ruling by the Court of Milan, which recognised copyright protection of the concept store of Kiko, the Italian make-up brand, and blocked competitor Wycon from using similar store decor in its shops. IPKat has written about this ruling here. However, recently Kiko’s application for a three-dimensional EUTM was refused for lack of distinctive character. In confirming the refusal, the EUIPO Board of Appeal recalled the CJEU’s preliminary ruling in C‑421/13 (Apple Inc. vs Deutsches Patent- und Markenamt), according to which a concept store may serve as a trademark if it is capable of indicating commercial origin, particularly if the depicted concept “departs significantly from the norm or customs of the economic sector”. In Kiko’s case, however, the BoA found that “none of the shapes, line and colour characteristics highlighted, either individually or in combination with each other, departs significantly from the norm or customs of the cosmetics retail sector”. Kluwer Copyright Blog: Kiko raises an eyebrow to Wycon’s makeover.

On the other side of the Atlantic, the U.S. Court of Appeals for the Ninth Circuit has upheld the decision to dismiss the case for copyright infringement against the owner of an IP address. The Ninth Court argued that the plaintiff had not shown that the defendant violated the plaintiff’s exclusive rights under the Copyright Act. On the element of contributory infringement, citing previous case law, the Court held that such a claim requires intentional inducement or encouragement of direct infringement. The 1709 Blog reports in The Ninth Circuit Dismissed Copyright Infringement Claim Against IP Address Owner.

Trade Marks

Kluwer Trademark Blog sheds light onto The “Torta” Battle, which has occupied Spanish case law for a long time, with the saga now continuing at the EU level. The main issue is whether the expression “torta” can be classified as a Traditional Designation within the meaning of article 2.2 of the Regulation 510/2006. The General Court recently held that a Designation of Origin can be comprised of a traditional non-geographical name designating a foodstuff. As a result, the term “torta” can be protected under Regulation 510/2006 as a traditional name.

Image Credits: helen.ratcliff.12