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

If you've been too busy enjoying the warmer weather to stay up-to-date with the IP news, here's the summary of what you missed.

We concluded the week with the sad news that Judge Marko Ilešič of the Court of Justice of the European Union (CJEU) passed away on 21 June. Eleonora Rosati shared an obituary that recalled Judge Ilešič's significant contributions to IP jurisprudence and his generosity as a colleague. 

Trade Marks and E-Commerce

Image by Riana Harvey

Marcel Pemsel discussed the General Court decision (Case T-79/23) about the conflict between the application to register the words ‘CHIQUITA QUEEN’ and the existing registration for a figurative mark comprising the words RED QUEEN for ‘fresh fruits’. The Court concluded that the reputation of the element ‘CHIQUITA’ is relevant and determined that the signs were not visually similar.

Marcel Pemsel also considered the General Court decision about McDonald’s ‘BIG MAC’ trade mark (Case T-58/23). The Court held that the evidence did not establish genuine use for ‘chicken sandwiches,’ but did establish partial use that was sufficient to maintain the category of ‘food prepared from meat products’.

Alessandro Cerri commented on the CJEU decision (Joined Cases C‑662/22 and C‑667/22) on the country-of-origin principle, which clarified that information service providers are only subject to regulation by their home Member State. Italy sought to impose certain obligations on companies like Airbnb (Ireland) and Amazon (Luxembourg), but this contravened the E-commerce Directive.

Patents and Designs

Katfriend Gabriele Girardello reported on the annual meeting of the European Patent Litigators Association (EPLIT) in Stockholm, Sweden. There were plenty of updates about the Unified Patent Court (UPC), including the postponed referendum for Ireland to join the UPC, and perspectives on UPC decisions and procedure.

Katfriend Henning Hartwig (Bardehle Pagenberg) evaluated the status of protecting animated digital or virtual designs under EU design law. The current position of the European Parliament would allow an unlimited number of views, or at least seems to abandon the seven-view-limit in the EU Designs Regulation. While this may put rightsholders in a better place for arguing validity, the additional views could make it more difficult to argue infringement.

Henning Hartwig also reported on the most recent EUIPO decision relating to the famous Crocs design (more precisely the model ‘Beach’). Many competitors had initiated, but then withdrawn, actions for invalidity over the years. In the latest decision responding to a request from the Spanish Gor Factory, S.A., the EUIPO has found invalidity due to lack of individual character.

Copyright

Kevin Bercimuelle-Chamot analysed a recent decision from the Douai Court of Appeal concerning moral rights relating to a ceramic fresco entitled "Innocent Printemps", commissioned in 1970. After the building was found to contain asbestos, the artists objected to the destruction of their work. The Court confirmed that moral rights have a high level of protection, but these rights are not absolute, although the total removal in this case was disproportionate.

Antonios Baris discussed the decision in Warner Chappell Music, Inc. v. Nealy, on the so-called "discovery rule." Nealy had been serving a prison sentence when Flo Rida released the allegedly infringing song, “In the Ayer,” in 2008, and did not initiate his action until 2018. The US Supreme Court held that statute did not establish a separate three-year period for recovering damages, contrary to the suggestions from earlier cases.