Privacy, the US and data

A new deal allowing for transfers of personal data from the EU to America has now been reached, known as Privacy Shield. This fills the gap left by the defunct Safe Harbor scheme, replacing it with a strengthened mechanism.

Blocking injunctions and trade marks

The Court of Appeal has confirmed a ruling by Arnold J in 2014 that blocking injunctions are available against ISPs in trade mark cases even though there is no specific provision prescribing them under UK trade mark legislation (the Cartier case). The majority of the court also agreed with the judge that the ISPs should bear the costs of implementing the court orders.

Injunctions and markets

On a similar issue, the Court of Justice of the EU has ruled that the operator of a physical marketplace can be subject to injunctions under the Enforcement Directive in the same way that an ISP can be as an intermediary.

Furniture, design rights and passing off

Whilst the Claimant was successful in establishing design right infringement in respect of a sofa design, they did not succeed in showing passing off, even though a neighbouring furniture outlet was selling three identical designs under the same names. This demonstrates the importance of evidence to establish that confusion has or is likely to incur in respect of trade origin, which is much harder with shape cases (the Raft case). The judge also said that the “author’s own intellectual creation” test for copyright originality under EU law had no application to originality for unregistered UK design right.

Colours and trade marks

Glaxo Wellcome were unsuccessful in trying to trade mark a combination of two purple colours for inhalers as an EUTM, because the photograph and accompany text explaining the positioning of the respective colours was not sufficiently precise.

Obviousness and patents

The Court of Appeal upheld the judge’s finding of invalidity in respect of Genentech’s patents on the grounds of obviousness, stating that this was a case where it was appropriate to consider that the skilled man could (rather than would) have arrived at the combination claimed without invention (the Hospira case).

Competition and patent licences

The CJEU has ruled that a patent licence was still valid and not anti-competitive despite the fact that it required the licensee to continue paying royalties even when the patent had been revoked, provided that the licensee had the right to terminate the agreement (the Genentech case).

Celebrities and trade marks

Rapper Burberry Perry (not his real name!) changed his name following action by Burberry in the US for use of the Burberry name. The rapper claimed that he was given the name after he used to wear Burberry clothes all the time, but his debut album cover also featured very strikingly similar Burberry designs – see here. Whilst Burberry do in fact have a Burberry Acoustic music related website, even without that, under EU law they would have been able to argue that the rapper was taking unfair advantage of and was detrimental to their reputation and goodwill in respect of dissimilar services, particularly given the strong language used on his album.

Music and copyright

Queen has become the latest in a growing list of bands and artists who have objected to Donald Trump using their music as part of his political campaign. Trump played We Are The Champions at the Republican National Convention apparently without the band’s consent.