Copyright

Former Guest Kat Jan Jacobi reported on a Dutch referral to the CJEU about Article 2(7) of the Berne Convention in connection with designer chairs, the issue being whether the scope of Art. 2(7) is a matter of EU law or the WIPO Performances and Phonograms Treaty.

Eleonora Rosati discussed a CJEU decision on communication to the public under Article 3 of the InfoSoc Directive, which drew a distinction between broadcasting music on a plane or train, being a communication to the public, and installing sound equipment (and enabling software), which is not.

Kat Friends Hanne Kirk and Charlotte Mittet Høfler analysed a recent Danish Supreme Court decision regarding the infringement of copyright in pottery, which held that the nature and the severity of the infringement provided a basis for lowering the requirement for proof of the amount of the loss.

Patents

Annsley Merelle Ward reported on the Berichten Industriële Eigendom Symposium 2023, which featured a panel comprising Dutch UPC judges and a member of the drafting committee of the Rules of Procedure which addressed topics such as the Rules of Procedure and the Agreement on the Unified Patent Court.

Rose Hughes commented on a EPO Board of Appeal decision concerning sufficiency and generating antibodies; though the EPO has previously held that a skilled person is generally able to generate antibodies, a patentee still needs to disclose sufficient information about the antibodies to avoid the “undue burden” prong of the sufficiency test.

Annsley Merelle Ward discussed the new WIPO publication, “An International Guide to Patent Case Management for Judges”, which sets out the different stages of patent litigation in 10 patent jurisdictions.

Trade marks

Marcel Pemsel commented on a Austrian Supreme Court decision, which held that an advertiser’s obligation not to use a trade mark in an infringing manner is not diminished when it employs third-party technology that creates an ad based on an algorithm unknown to the advertiser.

Kat Friend Ann-Kathrin Goller analysed the relevance of reputation in either an allegedly infringing or infringed mark to the assessment of deceptive similarity under Australia’s direct infringement provision, following a High Court of Australia decision that rejected the relevance of reputation.

Kat Friend Roya Ghafele reported on the ‘leaked’ European Commission IP Action plan, which proposed changes including a register of standard and essential patents and a dispute resolution service for FRAND determination.

Other

Kat Friend Paolo Maria Gangi informed that the United States Southern Court of New York ruled that an NFT is an asset and not merely a certificate of provenance, with the result that the NFT has value in itself and can thus be owned and sold.