Never Too Late: If you missed the IPKat last week!

If you were too busy enjoying the spring sunshine to follow the IP news last week, here's the summary of what you missed.

Patents

A Kat enjoying her time in the sun.
Image from Pixabay.

Guest UPCKat Agathe Michel-de Cazotte and members from the team at Carpmaels reported on the UPC Court of Appeal decision on the language of UPC proceedings. The case highlights what will count as "relevant" circumstances (e.g. nationality or domicile of a party) versus "irrelevant" circumstances (e.g. the nationality of the judges at first instance) in assessing a request for a change of language. In obiter dictum, the Court of Appeal stated that if the parties would be in a similar situation, then the circumstances of the defendant are decisive.

Rose Hughes discussed the imminent referral to the EPO Enlarged Board of Appeal on the correct approach to claim interpretation (T 0439/22). Specifically, the case considers whether the description should be taken into account when interpreting otherwise clear claim language. We'll wait to see whether the EBA accepts the referral, as it may not be convinced that the case law is sufficiently divergent to justify a referral.

Trade Marks

Katfriends Jakob Plesner Mathiasen and Matilde Helene Bom (Gorrissen Federspiel) examined a recent Danish decision tackling the relationship between trade mark law and freedom of expression. The case centred on the use of the iconic trademark figure for the Danish retail chain, Irma, that portrayed her in an uncharacteristically rebellious manner on various products (e.g. posters, bucket hats). The court found that the commercial exploitation of the figure could not be justified by freedom of expression.

Eleonora Rosati reminded readers to secure one of the last few places at the fifth annual Retromark conference, which will be hosted by Darren Meale of Simmons & Simmons and the IPKat from 2pm on Tuesday 7 May (registration is free but essential here). This year, the keynote speech will be delivered by Allan James, Senior Hearing Officer at the UKIPO. This Kat looks forward to seeing you there!

Marcel Pemsel evaluated the recent judgments of the EUIPO General Court and the Board of Appeal which found that the inversion of words does not lead to a likelihood of confusion when the words have a low degree of distinctiveness. The cases, which dealt with conflicts over the signs PARIS BAR / BAR PARIS and MEAT ZERO / ZERO MEAT respectively, illustrate that trade marks consisting of non-distinctive or lowly distinctive elements have a very limited scope of protection.

Copyright

Alessandro Cerri analysed the recent decision of the Municipal Court of Prague which held that an image generated by an AI tool (DALL-E) was not capable of being protected by copyright, as it was not authored by a natural person. The outcome is not surprising, but Alessandro highlights that the Court did not altogether rule out the possibility that the plaintiff could have authored the image, provided they had adduced sufficient evidence to show this.