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

¡Hola! from Alicante, España, where this Kat is excited to be reporting on this year's EUIPO Case Law Conference. Amidst the fascinating updates from the conference, here is the summary of the IP news that you might have missed last week.

Patents and Plant Varieties

A Kat enjoying the beach discussion of IP law.
Image from Pixabay.

Katfriend Roberto Manno (WebLegal.it) summarised the recent judgment from the Italian Supreme Court, which held that a plant breeder's contractual terms were contrary to public interest and therefore void. A grape producer had sold harvested fruit outside of the PVR owner's authorised distribution network contrary to the licence terms, but the Supreme Court held that the clauses in question were incompatible with the principles of EU law, especially those set out in the ‘Nadorcott’ case (Case C‑176/18).

Guest UPCKat Agathe Michel-de Cazotte and members from the team at Carpmaels discussed the development of preliminary injunction case law from the UPC in light of the recent decision in CUP&CINO Kaffeesystem-Vertrieb GmbH & Co KG v Aplina Coffee Systems GmbH. Since there was held to be no infringement, the request for a preliminary injunction was refused, but the judgment offered some interesting comments on opt-outs and recoverable costs.

Verónica Rodríguez Arguijo commemorated World Intellectual Property Day with some reflections on this year's theme of "IP and the Sustainable Development Goals: building our common future with innovation and creativity." She reflected on such initiatives as WIPO's recent "Mapping Innovations" report, which considered the impact of patents on achieving the SDGs and the overarching trends in sustainable innovation.

Copyright and Designs

Katfriends Adrian Aronsson-Storrier and Oliver Fairhurst (Lewis Silkin) discussed the protectability of AI-generated outputs under UK copyright law. They pick up on their previous comments about whether section 9(3) CDPA on computer-generated works operates as an exception to the originality requirement, especially in light of the E&W Court of Appeal decision in THJ Systems v Sheridan. They also discuss the role of restrictive contractual terms in these cases.

Kevin Bercimuelle-Chamot considered the recent ruling of the Tribunal Judiciaire of Paris (TJ), which dealt with the ongoing issues for the ready-to-wear sector. The case involved alleged infringement of copyright and unregistered designs, but neither claim was made out. Regarding originality, the TJ noted that the details of the garments were commonplace and the mere idea of the combination of opposing styles was not sufficient to confer originality.

Trade Marks

Katfriend Victoria Thüsing (Stockholm University) reviewed the book Hashtags and Trade Marks - A Comparative Legal Approach by Nazanin Aslani. This volume explores the legal aspects of hashtags as trade marks in the EU, Germany, and the USA, and considered whether the law currently maintains the balance between freedom of expression and protection of competition. The book is certainly #RecommendedReading.

This cat is so passionate about IP, it showed
up to the IPCLC dinner! © Jocelyn Bosse

Marcel Pemsel evaluated the protection of short jingles as trade marks in light of the recent EUIPO Board of Appeal decision, which confirmed the rejection of Berliner Verkehrsbetriebe's application for a two-second long sound mark in class 39 (‘Transportation; passenger transport; packaging of goods; storage of goods; organization of trips’) due to lack of distinctiveness. It considered the sound to be too short to have the necessary resonance or memorability, and had a functional purpose of capturing the attention of travelers.

Alessandro Cerri analysed the first referral from the Executive Director of the EUIPO to the Enlarged Board of Appeal to clarify whether an application that is withdrawn during the appeal period following a refusal decision from the EUIPO can proceed to conversion to a national application. The EUIPO's historic practice has been for such conversion applications to be rejected, but in the 'Nightwatch' case (Case R 1241/2020-4), the Fourth Board of Appeal decided that the EUIPO must allow conversion where there is withdrawal before a refusal decision becomes final. We shall await the guidance from the Enlarged Board of Appeal.

Intellectual Property Generally

Katfriend Victoria Dipla (Clifford and Chance LLP) reviewed the book Living with the Algorithm: Servant or Master? - AI governance and policy for the future by Tim Clement-Jones. The author draws on his experience as Chair of the House of Lords Select Committee on Artificial Intelligence (2017-2018) and Co-Founder and Co-Chair of the All-Parliamentary Group on Artificial Intelligence to discuss the issues arising from AI and map the international approaches to AI governance. Readers of the IPKat may be especially interested in Chapter 5, “AI and IP Rewarding Human Creativity.”

Eleonora Rosati shared the opportunity for readers to attend the upcoming IP courses run by the Academy of European Law (ERA) in Trier, Germany, including their "Summer Course on European Intellectual Property Law" (1-5 July 2024), "Summer Course on European Information Technology Law" (9-13 September 2024), and "Accredited European Patent Litigation Certificate (25 September 2024 to 16 May 2025). IPKat readers can benefit from a 25% discount in the registration fees.