Never Too Late: if you missed the IPKat last week

The IPKat team has been very active last week! Be sure not to miss a thing.

Mirror, Mirror on the Wall

Trade marks 

Spotted: GuestKat Riana Harvey reports on the failure of Global Brand Holding to register ‘XOXO’ as a European Union trade mark. In T-503/19, the General Court adopted the findings of the EUIPO BoA and affimed that ‘XOXO’ would be understood as “hugs and kisses” by the relevant public and thus lacks distinctiveness in classes 3, 9, 14, 18, 25 and 35. The ‘XOXO’ trade mark was thus ultimately refused. 

GuestKat Léon Dijkman shared a taste of vegetarian burgers and their not-so-vegetarian trade mark fights. In the case at hand, the owner of the EUTM “IMPOSSIBLE BURGER” brought an infringement suit against Nestlé, which recently introduced the “Incredible burger”. The Hague Court, competent over EUTM infringement cases in the Netherlands, forbade Nestlé to further infringe the “IMPOSSIBLE BURGER” trade mark in the EU. The case includes an exquisite mix of private international law, pan-European injunctions, descriptive signs and a competitor knowingly launching its products at risk of the legal measures with severe financial consequences. 

GuestKat Alex Woolgar updated IPKat readers on the English High Court decision in the Merck case [ earlier judgments in this dispute were reported by the IPkat here and here]. The case involved Merck Global and its former subsidiary, Merck US, which long began to operate as an unrelated company and a co-existence agreement, later amended, which was drafted in the pre-internet era. As Alex writes, the multi-layered result in this decision shows that, regarding co-existence agreements, “easy to agree, easy to regret”.

Copyright

Our Asia correspondent, Tian Lu, wrote two posts on recent legislative developments in China. First, Tian commented on the Draft Amendment to the Chinese Copyright Law, which was recently published for public consultations. Article 53 of the Draft Amendment introduces a significant increase in the maximum statutory damages for copyright infringement. Second, the first-ever Chinese civil code has recently been adopted. Although it does not include a specific section on intellectual property, Tian shared her analysis of the most relevant provisions, including punitive damages for intentional IPR infringements. 

SpecialKat Chijioke Okorie started a series of posts on the implementation of the Beijing Treaty on Audiovisual Performances in Africa. The series will run in alphabetical order and Chijioke’s first post is dedicated to Algeria, who acceded to the Beijing Treaty in 2017. 

GuestKat Thomas Key shared his analysis of the decision in Daniels v. Walt Disney Company. The case involved Denise Daniels, who created the Moodsters, an anthropomorphic representation of five basic human emotions, and the producers of Inside Out animated film, where five colour-coded anthropomorphic emotions are among the main characters. The Ninth Circuit Court of Appeal addressed the copyright protection that may be afforded to graphically-depicted characters in fictional works. 

Designs

GuestKat Thomas Key informed the IPKat readership about a recent decision by the US Federal Circuit Court of Appeals in a case involving of a design patent, copyright, trade dress, and unfair competition. The case, Lanard Toys Limited v. Dolgencorp LLC, concerned the design of a chalk-holder, resembling a pencil, . Inter alia, the court ruled on the question of separability, finding, in this case, that the design of a useful article is not separable from the useful article (e.g. a chalk-holder) itself.

Book reviews

This past week our SpecialKat Hayleigh Bosher has been actively reviewing books for the IPKat readers, reviewing “The Making Available Right” by Cheryl Foong and “The Confusion Test in European Trade Mark Law” by Ilanah Fhima and Dev S. Gangjee. 

Other 

Eleonora Rosati shared the news that the Fashion Law London will be held this year online, from 29 June to 1 July, Eleonora, together with Rosie Burbidge and Giulia Gasparin, will discuss intellectual property issues that are most relevant for the practitioners in the field of fashion.

Last week, WIPO launched its online service WIPO PROOF, which produces tamper-proof evidence regarding the existence of a digital file at a specific time. Verónica Rodríguez, our TechieKat, has already tested these new services and shares her experience with the IPKat readers.

Never Too Late 266 [Week ending May 24] Lessons in legal fudge from the EBA in Pepper (G3/19) | Bad faith grounds for invalidating EUTM containing Chinese characters | BREAKING: US Copyright Office finds current safe harbor system 'unbalanced' and 'out of sync with Congress' original intent' | Milan court rules against Antonio Marras over unauthorized use of howling wolf photograph | Want to understand goodwill? Ask the cat, dog, rat and rabbit | Privacy rights and social media: can a person be prohibited from sharing online a picture of her grandson?

Never Too Late 265 [Week ending May 17] Waiting for Constantin: Hague District Court orders release of ISP user data, including e-mail addresses | BREAKING: EBA finds plants produced by essentially biological processes are NOT patentable (G3/19) | New BGH ruling to harmonize FRAND case-law post Huawei? | [Guest post] Revocations, special compulsory licenses, patent strategies & COVID-19: A note on Indian Patent Law | "Unclean Hands" accusations in South African Bayer patent battle with Villa Crop | The new Greek Trademark Law: read all about it | [Guest book review] ‘The Right of Publicity: Privacy Reimagined for a Public World’