The IPKat’s 20th Birthday Conference Reports – Part 2

After the opening part and the keynote speech, which Eleonora has covered here, our celebratory event continued with the first panel. It was dedicated to the best and worst copyright and design cases of the past 20 years. 

Lord Justice Arnold, opening the first panel (photo: Neil Graveney)

Lord Justice Arnold opened the panel, suggesting Infopaq (C-5/08) as both the best and the worst copyright case (and certainly the most influential). Infopaq anchored EU copyright law in the Berne Convention. The case also introduced clear criteria for the originality requirement. Yet, Infopaq is also illustrative of the Court of Justice's (CJEU) issues. For instance, the CJEU failed to address all the questions referred by the Danish court. This led to a second request for a preliminary ruling (C-302/10). The case is also often misunderstood because of the sloppy reasoning regarding the infringement of part of a work: many tend to think that Infopaq confirms that reproducing 11 words from a newspaper is an infringement, while the ruling does not say that.

Hayleigh Bosher followed with a discussion of copyright cases from the music industry. The US litigation in Blurred Lines is the worst copyright case of the past years in her view. This is not least because the jury in the case was played the Gaye’s full version of the “Got to Give it Up”, while only the music sheet and not other elements of this full version were deposited at the Copyright Office. Hayleigh’s best copyright case is Ed Sheeran concerning his “Thinking Out Loud” song [see Hayleigh’s earlier posts on the Ed Sheeran cases]: hopefully, after this case there will be less music infringement litigation of this kind.

Chijioke Okorie during the Q&A 
(photo: Neil Graveney)

Chijioke Okorie then presented the Blind SA vs the South African Minister of Trade, Industry and Competition. Blind SA is a local NGO that represents visually impaired persons. Blind SA challenged the South African Copyright Act as going against human rights and being unconstitutional [see Chijioke’s posts on the copyright reform and the case]. For Chijioke, the focus on human rights is what makes this case the best one. At the same time, the ruling only concerned the rights of visually impaired persons and does not address other possible discriminations in the Copyright Act.

The panel continued with the presentation of Eleonora Rosati. For Eleonora, if there is one copyright case of the past 20 years, it is definitely Infopaq. Prior to Infopaq, the EU legislator was reluctant to harmonise horizontally key aspects of copyright law, including the originality criterion. Infopaq was the CJEU’s response, showing that the EU needs a harmonised copyright system. Since then, the EU legislator has played catch-up with the case-law. Directive (EU) 2019/790 is the most recent example as it either codifies or “reacts” to many of the CJEU rulings, including Infopaq. As examples of the worst cases, Eleonora cited Cofemel (C-683/17) and Brompton Bicycle (C-833/18) [see some Eleonora’s posts on the matter here and here]. This is mainly because these requests from national courts were unnecessary after the ruling in Flos (C-168/09) and yet some national courts seem still to suffer from sort of post-traumatic stress disorder.

David Stone, explaining where the definition of "informed user" stands (literally)
(photo: Neil Graveney)

The panel was closed by David Stone’s views on the best and worst design cases. For David, PepsiCo vs Grupo Promer (C-281/10 P) is the best design case, as it successfully defined the notion of “informed user” as a legal fiction lying somewhere between the average consumer, applicable in trade mark matters, and the person skilled in the art, who is an expert with detailed technical expertise (which we find in patent law). UK litigation over the Trunki ride-on suitcases is the worst design case due to the erroneous interpretation of the scope of protection for black and white CAD files.

Now over to Anna Maria, who will cover the best and the worst trade marks and geographical indications cases of the past 20 years!