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

If you've been too busy watching for signs that spring has truly sprung, here's the summary of the IP news you missed last week:

Trade Marks

Image from RebaSpike via Pixabay.

Marcel Pemsel discussed the recent General Court judgment in Lidl Stiftung v EUIPO - MHCS (Nuance de la couleur orange) (T-652/22) concerning the orange colour trade mark for the Veuve Clicquot champagne. The case involved issues of graphic representation and illustrates that the EU trade mark reform in 2019 made the situation for colour trade mark applicants worse, since applicants are now required to file both a colour sample and the indication of a colour code. The case also raised issues about acquired distinctiveness, for which the Court affirmed that primary or direct evidence on the perception of the relevant public was necessary. MHCS had only submitted secondary evidence, so the case was remitted back to the Board of Appeal.

Anna Maria Stein analysed the EUIPO Board of Appeal decision, confirming the refusal to register a position trade mark for eyewear. The decision affirms that a trade mark may be devoid of distinctive character as a figurative mark but, when requested in one or more specific positions, it may acquire distinctiveness. The case has been remitted to the Examination Division to evaluate whether there is acquired distinctiveness through use.

Patents

Katfriend Lionel Martin (August-Debouzy) queried whether the panel composition of the Unified Patent Court (UPC) is in breach of the European Convention of Human Rights (ECHR). Thus far, since UPC Court of Appeal has mainly been dealing with procedural questions, it has taken the position that it would be composed of only three Legally Qualified Judges (LQJs) - even though Article 9(1) UPCA provides that "Any panel of the Court of Appeal shall sit in a multinational composition of five judges." While the absence of two Technically Qualified Judges (TQJs) has been justified as being more cost effective and efficient, the principle of efficiency in ECHR case law does not seem to permit the reduction of the number of judges within a panel.

Katfriend Ada Nourell (Hogan Lovells) reported on AIPPI UK’s annual patent round-up event, whose programme was organised in the form of a Christmas menu. The discussion across the three-course meal covered some important guidance on FRAND licences, Arrow declarations, plausibility, AI inventions, and anticipatory disclosure. The cases also provided some comments on the instruction of experts and case management. 

Copyright

Katfriend Desmond Oriakhogba (University of the Western Cape) contributed to the discussion about South Africa’s Copyright Amendment Bill (which is still awaiting presidential assent) with some analysis of the provisions aimed at ensuring fair remuneration for South African creators and performers. For instance, the Bill introduces a system for artists resale royalty in respect of artistic work, licensing of the use of orphan works, and authors’ reversionary right.