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

If you were too busy enjoying the opening ceremony and first days of the 2024 Olympic Games, then join this Kat in reading the summary of what you missed on The IPKat!

Trade Marks

Gif by Riana Harvey

Marcel Pemsel reported on the recent decision of the Higher Regional Court of Düsseldorf regarding the three stripes battle between adidas and Nike (I-20 U 120/23). The Court acknowledged that the general public is likely to associate three stripes on the side of clothing with adidas. However, it found that 4 out of the 5 allegedly infringing models of Nike’s trousers were not sufficiently similar to adidas’ trade mark. This was because the specific designs of the stripes on those 4 models did not cause consumers to perceive them as an indication of origin (i.e., as adidas trousers) and led to a different overall impression. This finding, however, seems to contradict a previous decision of the German Supreme Court in Drei-Streifen-Kennzeichnung (I ZR 21/98), in which a pattern consisting of two stripes (as opposed to adidas’ three stripes) had been found to be infringing due to adidas’ significant reputation.

Katfriend Kimberley Evans (Pearce IP) analysed the Federal Court of Australia’s decision in FanFirm Pty Limited v Fanatics, LLC. The Court dealt with trade mark infringement, cancellation of trade mark registration, misleading and deceptive conduct, and passing off claims brought by both parties. It was found that Fanatics infringed FanFirm’s “FANATICS” trade mark; however, FanFirm’s trade mark registrations were still cancelled. It was further stated that neither party’s conduct was misleading or deceptive, nor did either commit passing off.

Plant Varieties

Jocelyn Bosse celebrated the 30th birthday of the EU Plant Variety Rights Regulation. This milestone is worth acknowledging given the significant developments that took place in the EU plant variety rights system during its twenties. However, several key challenges remain for the next decade, including sustainability, biodiversity, and food security.

Patents

Guest UPCKats, Agathe Michel-de Cazotte, Hiske Roos, and Laura Mikkelsen (Carpmaels) examined the UPC Court of Appeal’s decision on the VusionGroup v Hanshow litigation (UPC_CoA_1/2024). The Munich Local Division, in addressing the patent infringement claims made by VusionGroup, stated that the relevant claims were not constructed with a sufficient degree of certainty. VusionGroup appealed this decision to the UPC Court of Appeal primarily because of the Local Division’s use of the prosecution history of the patent to interpret the claims. However, the Court of Appeal refrained from providing a definitive stance on the use prosecution history as an aid in claim construction by stating that it had interpreted the relevant claim without reference to the prosecution history of the patent.

Copyright

Katfriend Henning Hartwig (Bardehle Pagenberg) provided a brief overview (based on a longer article recently published by the Journal of Intellectual Property Law & Practice) of the claims made by the “House of Birkenstock” over time in relation to trade dress law, design law, and, lastly, copyright law before the German courts. The Cologne Appeal Court was asked to decide whether the shape of Birkenstocks could enjoy copyright protection. The court decided that it could not, as the choices of Birkenstock designers are constrained with the intended use of the sandals. It is not yet clear whether this ruling will stand, as the House of Birkenstock has been granted leave to appeal to the German Federal Supreme Court. However, the Supreme Court is unlikely to render its judgement before 2025, as it has already suspended a case on copyright subsistence and referred it to the Court of Justice of the EU (C-795/23) [IPKat here].

Book Review

Kevin Bercimuelle-Chamot reviewed the book Enforcing Intellectual Property Rights: A Concise Guide for Businesses, Innovative and Creative Individuals by Jane Lambert. The book provides a brief and to the point guidance on the enforcement of intellectual property rights mainly in the UK, with references to the author’s own professional experience.

Events and Opportunities

Verónica Rodríguez Arguijo notified The IPKat readers about several events and opportunities, including a job opening at the WTO, the ‘Digital Knowledge – The Library and Copyright in a Global Digital Economy’ conference, the call for articles for JIPLP’s Special Issue on Fashion and IP, and the ‘Infringing AI: Liability for AI-generated outputs under EU/UK copyright law’ webinar. For details and further news and events, take a look at our TechieKat’s latest post here.