Never Too Late: if you missed the IPKat last week

Hope this Never Too Late post is not too late. Here come all the posts contributed by the Kats two weeks ago. 

Copyright 

Eleonora Rosati reports the judgement in Google v CNIL, C-507/17, in which the CJEU rules that in 'right to be forgotten' cases, a search engine cannot be ordered to undertake global delisting but needs to delist EU-wide and undertakes some geo-blocking. 

She also looks at a new CJEU referral on right of communication to the public relating to ‘seeding' (meaning the uploading of already downloaded content for others to download). In this case, the CJEU will address whether 'seeding' shall be regarded as a communication to the public. As well, it will consider whether there is a de minimis threshold, only above which the seeding of pieces would constitute a communication to the public. 

In 'Copyright Troll-[ing] Canadian Courts? Canada’s First Reverse Class Action Copyright Case' , Kat friends Kristianne C. Anor and Sanjit Rajayer, discuss Canada’s first reverse class-action copyright case brought by film production companies against a class of an unidentified and potentially unlimited number of Canadians for copyright infringement, in which the defendant conducts the filing-sharing of the plaintiffs' movies with BT. 

In 'Zervos v Picasso, or copyright v droit d'auteur' , GuestKat Antonella Gentile offers a post on the decision in Zervos v. Picasso case (United States District Court for the Northern District of California). Here, the plaintiff requests that the Court recognise a French court’s judgement, granted in 2012 in favour of the plaintiff in which EUR 2 million in damages was awarded. At issue is whether the 2012 French judgment is at odds with the U.S. doctrine of fair use. 

Trademarks 

SpecialKat Tian Lu, in 'Beijing IP Court: Moutai is excellent, but not exclusively so' , provides insights into the ruling in the Moutai case in China. There, the Beijing IP Court held that the trademark ‘茅台国宴’ (Moutai state banquet) should not be registered as a trademark for alcoholic products, as the relevant public for the relevant products might view the alcoholic products as being dedicated to the state banquet , and thus misidentify its quality, grade and other characteristics.

Curious about what happens last week

GuestKat Antonella Gentile reports on the opinion of AG Pitruzzella in the Cooper case, C-622/18. The AG advises the CJEU to rule that proprietor of trademark revoked for non-use can seek compensation for infringing acts committed prior to revocation.

Patents 

In 'Is Article 3 (a) of the Regulation (EC) 469/2009 disappearing into the mist, or is clarity round the corner?' , Guest Kat Frantzeska Papadopoulou provides an overview of the interpretation of one of the criteria for SPC eligibility in the EU, namely the requirement that the product is 'protected by a basic patent in force'. She discusses the two tests adopted by the CJEU, namely that the product must be 'specified' or‘identified' in the claims of the basic patent (Medeva, C-322/10), and that the product must reflect 'the core inventive advance' of the basic patent (Actavis v Sanofi, 443/12). She also summarises the important points made in the AG opinion in Case C-650/17 and C-114/118 concerning the application of the Teva decision in the forms of claim drafting. 

IP Enforcement 

GuestKat Peter Ling, in‘There is No Such Thing as a Free Launch – CJEU Does Not Follow AG on Compensation for Wrongful PI' , reports and critically comments on the latest ruling in Bayer Pharma case C-688/17. Here, the CJEU held that: (1) Art.9 (7) of the Enforcement Directive harmonizes the conditions and the amount of the compensation for a wrongfully granted preliminary injunction; (2) whether 'appropriate'  compensation is  to be determined on the basis of the specific circumstances of the case; and (3) that while the subsequent lifting of the preliminary injunction because of a finding of non-infringement or invalidity is a necessary condition for ‘appropriate compensation’, it does not automatically lead to an award of compensation. 

Kat friend Jake Campbell reviews the UKIPO’s latest issued Annual IP crime and enforcement report for 2018-2019. This report looks at the landscape of criminal IP infringement in the UK over the last year; and highlights the successes and challenges in tackling infringement through the UK’s criminal, rather than civil, enforcement regime. 

AIPPI Report Series 

Annsley Merelle Ward brought a series of four reports from a team of guest AIPPI reporters. 

Sarah Blair covers the first session about the role of copyright in the production and exploitation of art and architecture. She also reports on the session concerning the latest in trade secret protection from the perspective of in-house counsel. 

Hans Eriksson writes on the session concerning the maelstrom around Brexit and its implications for IP, customs enforcement against counterfeit and IP in the fashion industry. 

Toby Bond then reports on the session on copyright in AI-generated work, discussing whether copyright should or does vest in works created solely by AI. 

IP Education Series 

In the first post in the IP Education Series, Kat friend Clarie Howell introduces the Patent Intellectual Property and Entrepreneurship Club in Aston University. This club is designed as a practical multidisciplinary course aimed not only to create IP awareness but to provide the knowledge and to encourage the skills and confidence needed in students to start up their businesses. 

IP and Economy 

In 'Does IP boost the European economy? EPO and EUIPO say so', GuestKat Leon Dijkmann critically exams the joint report by the EPO and EUIPO entitled "IPR-intensive industries and economic performance in the EU". This report once again confirms the economic benefit for Europe of IPs. 

Never Too Late 234 [Week ending 15th September] AG Szpunar advises CJEU to rule that internet downloads of ebooks are covered by right of communication to the public, not distribution (so, no, there is no digital exhaustion under InfoSoc Directive) | CJEU confirms that German press publishers' right is unenforceable due to missed notification to the European Commission | CJEU rules that only requirement for copyright protection of designs is their originality | Drake sued for copyright infringement of a beat | Anne Black copyright dispute - originality: how low can you go? | Voice-overs, peer-to-peer recruitment platforms and IP rights: a survey of 200+ performers | Article 3(a) just keeps on giving: AG Opinion in SPC referrals C-650/17 and C-114/18 | Comments from the EPO President on the patentability of computer-implemented simulations (G 1/19) | An inappropriate use of discretion leads to ping-pong (T0688/16) | Swedish Patents and Market Court of Appeal requests CJEU to clarify concept of “public” in new CJEU reference | Book Review: Regulating Hosting ISPs' Responsibilities for Copyright Infringement | What's in a name? General Court rules conceptual comparison of names normally not possible | Cannot Register “IGP” for Paint in Switzerland – because It Could Be a PGI 

Never Too Late 233 [Week ending 8th September] YouTube takes copyright law into their own hands with new policy on music infringement | InterDigital starts Lenovo FRAND war, plus reader discount at SEP Strategy Conference | The patent debate surrounding PrEP, the game-changer in HIV prevention | What is the future of plausibility? AIPPI country survey results suggest plausibility requirement “undesirable” | Forthcoming ERA IP events with 25% IPKat discount | Book Review: Online Distribution of Content in the EU | The three Rs of legitimate expectation: Recognizability, recoverability and responsibility (T 0703/19) | The facepalm trade mark case in China | Around the IP Blogs | Commons Clause in open source licences: business necessity or betrayal of software freedom? | International jurisdiction in online EU trade mark infringement cases: CJEU rules that targeting may serve to establish jurisdiction | Can Africa’s trade agreements handle regional integration? | Has the EU lost its way on gene-editing? 

Never Too Late 232 [Week ending 1st September] Board of EUIPO says re-filing of Monopoly’ as EUTM is invalid due to bad-faith | Can the ideal image of female beauty be considered a limit to a designer’s freedom? | Brussels court grants Louboutin inhibitory decision against Amazon | Planet Art v Photobox passing off: no compunction when refusing injunction | On economic analysis of IP law: an interview with professor Tom Cotter | Calls for holistic reforms to digital platforms from Australia’s competition regulator | Enterprise name vs. trade mark: throwing a straw against the wind? | What we can learn from Jane Austen and President Ulysses S. Grant about the business of book publishing: "plus ça change, plus c'est la même chose" | Invitation for applications for the Shamnad Basheer IP / Trade Fellowship at the Texas A&M University School of Law