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Here is a quick recap of what you might have missed! Copyright Former PermaKat Nicola Searle (Goldsmiths, University of London) compared the current copyright debates to those of the 2010s, as well as the substitutability of copyright works. Katfriend Angela Chung (Berkeley Law) analyzed the controversies of the recent Studio Ghibli AI craze in the light of US law and grey areas for artistic protection through the moral rights granted by VARA. Marcel Pemsel looked into the latest decision of the German Supreme Court concerning the question of the commercial effect of two websites which were primarily directed at Kazakhstan and Ukraine. Eleonora Rosati explained a recent referral (C-182/24) to the Court of Justice of the European Union and discussed Advocate General Campos’s Opinion in the case. Patents Rose Hughes outlined T 1913/21 concerning a crucial differentiation between second non-medical use claims and process claims. Rose Hughes explained T 0660/22 regarding a patent application related to a method for analyzing image data about cells growing in culture. The decision highlights some of the challenges associated with trying to broadly protect software-based platform technology for biological research. Rose Hughes commented on the G 1/24 concerning the question of how to interpret the claims of a patent, and whether the description of the patent may be used for this purpose. The written decision of the Enlarged Board of Appeal in G 1/24 is yet to come. Trade Marks Oliver Fairhurst reported on the Retromark event hosted by Simmonds & Simmons. The event included two panel sessions and a keynote by Prof. Johanna Gibson (Queen Mary). Moreover, he reported on Darren Meale’s interview made of eight questions to understand the views of the UK trade mark profession. More details here. Söğüt Atilla analyzed a recent EU General Court decision regarding the distinctiveness of a figurative sign for which Mercedes-Benz Group AG (applicant) had sought registration as an EU trade mark. Plant Varieties Jocelyn Bosse commented on Advocate General Campos Sánchez-Bordona's Opinion in C 341/24 Duca di Salaparuta. Jocelyn Bosse discussed the long-running dispute concerning Driscoll's strawberry plant patent infringement. IP events and opportunities Marcel Pemsel shared upcoming IP news, events and opportunities. Bucerius Law School in Hamburg will hold a 3-week summer program on licensing transactions in IP. INTA, the Andean Community Court of Justice and the Inter-American Association of IP announced that applications are now open for the fifth annual Latin American Moot Court Competition on IP Law. Several events include the 32nd Annual IP Conference in New York hosted by Fordham Law School covering a broad range of cutting-edge topics and the annual copyright seminar of the UCL Institute of Brand & Innovation Law in London. More details here.

If you were too busy to keep up with The IPKat’s quite patent-centric week, do not worry – this Kat is here to help you catch up! A Kat relaxing after finally catching up with The IPKat IPKat Book of the Year Awards 2024! Anastasiia Kyrylenko reminded readers that the deadline to vote for your favourite IP books of 2024 is fast approaching! If you have not done so yet, do not forget to cast your vote here by 31 January 2025. Trade Marks Jocelyn Bosse summarised yet another long-waited judgment of the Court of Appeal of England & Wales: Thatchers Cider Company Limited v Aldi Stores Limited. The court concluded that Aldi’s packaging had taken unfair advantage of Thatchers Cider Company’s well-known trade mark. Katfriend Edoardo Cesarini (GR Legal) discussed a decision of the Turin Court of Appeal on the protection of an unregistered trade mark consisting of a colour combination. After clarifying that the relevant colour combination belonged to Juventus rather than Adidas, the court ruled that it was a renowned distinctive sign of Juventus, granting it unregistered trade mark protection under Article 12, let. b of the Italian Industrial Property Code. Marcel Pemsel reviewed a recent EUIPO Board of Appeal decision concerning the likelihood of confusion between two trade marks featuring the word “Oktoberfest”, which has become descriptive over time due to its widespread use worldwide. The Board concluded that the claims of likelihood of confusion should fail, as the identical or similar elements in the two marks consisted solely of the weakly distinctive, if not non-distinctive, term “Oktoberfest”. Patents Rose Hughes evaluated a recent EPO Board of Appeal decision reaffirming the validity of functionally-defined antibody claims at the EPO. In addition to providing guidance on obtaining patent protection for an antibody genus claim in Europe, the decision demonstrates the differing approaches taken by the US and EU regarding the patentability of antibody inventions. Annsley Merelle Ward reported on the letter sent to the UPC Court of Appeal by the IP Federation. The letter calls on the UPC to refrain from imposing a blanket prohibition on in-house counsel serving as representatives before the UPC. Katfriend Greg Corcoran analysed a well-known referral to the Enlarged Board of Appeal of the EPO regarding claim interpretation. He discussed the EPO President’s responses to the referral and shared his views on their potential implications. Rose Hughes commented on an EPO Board of Appeal decision shedding light on standards of proof in cases of alleged prior use. The decision suggests that the choice between the balance of probabilities and beyond reasonable doubt should not be the primary concern. Instead, the decisive factor should be “the deciding body’s conviction on the occurrence of an alleged fact, taking into account the particular circumstances of the case and the relevant evidence before it”. Rose Hughes also discussed a recent EPO Board of Appeal decision concerning the interpretation of the morality exclusion under Article 53(a) European Patent Convention. The Board found that the contested invention contravened the principle of human dignity, as it allowed for the integration of human cells into the brain or germ-line of the chimeric animals specified in the claims. IP News, Events, and Opportunities Verónica Rodríguez Arguijo notified IPKat readers of several upcoming events and opportunities, as well as some developments in the IP world. The European Union Intellectual Property Office (EUIPO), in collaboration with the Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs (DG GROW) and the Directorate-General for Agriculture and Rural Development (DG AGRI), will hold, in a hybrid format, the Geographical Indications Conference “Safeguarding our Heritage, Cultivating our Future” on 28-29 January; and the University of Antwerp will host the 2025 Annual Conference of European Policy for Intellectual Property Association between 10 and 12 September. She also highlighted two call for papers, one is for the WIPO Magazine while the other is for the Journal of Law, Market & Innovation. The IP news of the week was the announcement of the USPTO’s new AI Strategy, and the release of the EUIPO’s and EPO’s report, “Intellectual property rights and firm performance in the European Union”. For further details, do not forget to check out our latest Saturday Sundries post. Image courtesy: Aylin Atilla

Another eventful week in the world of IP, and this Kat is here to keep you updated with the latest from The IPKat. Trade marks and Plant Varieties Marcel Pemsel reviewed a recent decision of the General Court concerning the visual similarity between Armani’s well-known eagle-shaped logo and a sign that also consisted of eight horizontal stripes. The Court decided to annul the BoA’s decision that had found a low degree of visual similarity. The judges also considered the General Court judgments cited by the BoA in its contested decision to be inapplicable in the case at hand. Jocelyn Bosse discussed a word mark application for a new plant variety of the University of Georgia. Several conflicts arose after the USPTO granted the trade mark for the name SEABREEZE, due to a failure to conduct a proper search of the plant variety protection register before proceeding with the trade mark application. Marcel Pemsel reported on a recent decision from the Higher Regional Court of Hamburg concerning the use of a bleeding red cross on a book cover criticizing the German healthcare system. The Court ruled that the use of the bleeding red cross infringed the plaintiff’s well-known trade mark for the Red Cross (Sec. 14(1) sentence 1 no. 3 German Trade Mark Act). CopyrightSöğüt Atilla continued her exploration of the European Copyright Society’s Opinion on Pelham II. In part two, she focused on the features that pastiche works should exhibit according to the European Copyright Society. PatentsKatfriend Ian Jones (GJE) analysed the European Patent Office referral concerning third-party interveners. The Enlarged Board is expected to provide comments by 17 April 2025. Guest UPCKats William Mooney and his team members (Carpmaels) reported on i-mop v Arcora (UPC CFI 193/2024) concerning decisions by default. Jocelyn Bosse explained T 0425/23 concerning issues of insufficiency of disclosure, novelty, and inventive step. The disputes centred around a European patent filed by Impossible Foods Inc., claiming a meat substitute that acquires the taste and smell of meat during cooking.  Book ReviewAnastasiia Kyrylenko reviewed the book “Research Handbook on Intellectual Property Rights and Arbitration,” edited by Simon Klopschinski and Mary-Rosy McGuire (Edward Elgar, 2024). The book targets a broad audience interested in the arbitration of intellectual property disputes. IP events and opportunities Eleonora Rosati informed the Readers of the Global IP Exchange Europe Exchange event. This invitation-only event will take place in Berlin on 11-12 March 2025.Eligibility requirements to receive an invitation are as follows:•Controlling where the IP, Patent, Trademark, Brand Protection, or Anti-Counterfeiting budget is spent•Holding a position as the Head of IP or Head of Patent, Trademark, Brand Protection, or Anti-Counterfeiting•Having a personal annual budget of £500,000 or above•Having an active requirement for IP solutions within the next 6 - 12 monthsTo learn more and request an invitation, click here. She also reminded the Readers of upcoming events and opportunities. Applications for GuestKat and InternKat positions are open until 20 January. The 7th edition of the IPKat Book of the Year Awards will recognize and celebrate the best IP books published in 2024. Do not forget to vote your preferences until 31 January. Moreover, ASEAN Geographical Indications Webinars will start on 21 January. Sir Richard Arnold will deliver his 9th Annual Lecture at Westminster Law School on 18 February. Additional opportunities include the WIPO International Patent Drafting Training Program, the 2024 4iP Council Research Awards, and ATRIP's Call for Papers on IP and Justice.

The first week of the new year on The IPKat has, as always, been packed with news from the IP world. Here is a recap of what we have covered: Katcall A Kat trying to get out of bed and catch upwith IP news after the Holidays…Time is ticking for GuestKat [apply here] and InternKat [apply here] applications! Be sure to submit your application by Monday, 20 January (midnight GMT) if you want to join the Kats! For further information, see Merpel’s announcement. Trade Marks Eleonora Rosati reviewed a recent decision by the Board of Appeal (BoA) of the EUIPO regarding the eligibility of Tetra Laval’s liquid container for trade mark protection. BoA was asked to decide whether the container’s shape served a technical function, thereby preventing it from being protected as a trade mark under Article 7(1)(e)(ii) of the EU Trade Mark Regulation. Additionally, the BoA considered whether the application to register the shape of this patented invention was made in bad faith. Both points were answered in the negative. Former GuestKat Nedim Malovic (ASSA ABLOY) discussed a decision by the EUIPO Cancellation Division on the invalidity of a trade mark featuring a fictional character’s name from Emily in Paris, Pierre Cadault. By invalidating the “Pierre Cadault” mark, the EUIPO emphasised that unfairly exploiting the name of a fictional character may not align with acceptable commercial practices and could even amount to bad faith. Marcel Pemsel commented on a recent EU General Court decision regarding the distinctiveness assessment of a trade mark for virtual products. The Court’s judgment made it clear that the distinctiveness of trade marks covering virtual goods and services should be assessed in the same manner as those covering tangible products. Copyright This Kat began exploring the European Copyright Society’s Opinion in Pelham II. In Part 1, this Kat delved into the four options outlined by the Opinion regarding how the Court of Justice of the EU might approach pastiche vis-à-vis parody. The Opinion also identified key features that pastiche works should demonstrate – stay tuned for Part 2 for further insights on these. Verónica Rodríguez Arguijo reported on the 34th International Publishers Congress, held in Mexico from 3 to 6 December 2024. The copyright sessions of the event included discussions on the impact of AI technology on human creativity, the enforceability of EU AI Act and the text and data mining exceptions, the Mexican and Colombian proposals to regulate AI, the US Copyright Office’s report on digital replicas, and the role of exceptions and limitations more generally. IP Events and News Jocelyn Bosse notified IPKat readers of several upcoming events and news. She provided an update on Crypto Open Patent Alliance (COPA) v Dr Craig Steven Wright, regarding Craig Wright’s authorship battle over the Bitcoin White Paper. She also informed patent enthusiasts about Cohausz & Florack’s two webinars on the case law of the European Patent Office and reminded readers about the Centre for Intellectual Property and Information Law (CIPIL) at the University of Cambridge’s Annual IP Lecture, to be delivered by Robert P. Merges on 18 March. In addition, she shared the bittersweet news of the farewell of three GuestKats. For further details, do not forget to check out our latest Wednesday Whimsies post. Technical Issues Merpel McKitten reported a technical issue concerning posts by The IPKat’s co-founders, Jeremy Phillips and Ilanah Fhima, published between 2003 and 2006. To learn more about what happened and the practical solution devised by Merpel and our TechieKat, check out what Merpel has written. Image courtesy: Aylin Atilla

Never too late to get back on track! Join this Kat to catch up on what you may have missed. Trade marks Jocelyn Bosse reported on a recent decision of the Federal Court of Australia concerning the honest concurrent use of a trade mark. The court was asked to decide whether the American artist Katy Perry was liable for trade mark infringement and whether the trade mark “KATIE PERRY” registration should be cancelled. The case highlighted the importance of the specification of goods or services and a possible co-existence agreement. Katfriend Nedim Malovic (ASSA ABLOY) commented on a recent decision of the EU General Court concerning a figurative trade mark held by Chiquita. The Court found that the combination of primary colours was not capable of distinguishing goods in Classes 31 (fresh fruits and vegetables) and 32 (fruit juices) of the Nice Classification. The Court also concluded that Chiquita Brands had failed to demonstrate that its mark had acquired a distinctive character across the entire territory of the European Union. Marcel Pemsel looked into a judgment of the Higher Regional Court of Nuremberg concerning the exhaustion of a Turkish trade mark that enjoys protection in the EU, inter alia, for ‘coffee’. The Court questioned whether the trade mark rights in the imported goods were exhausted under Art. 15 EUTMR. For a detailed analysis of the decision, read our Kat’s post here. Plant Varieties Jocelyn Bosse informed The IPKat readers about the Arusha Protocol for the Protection of New Varieties of Plants, which has just entered into force. The Protocol establishes a harmonized system for plant variety rights, providing protection of 25 years for trees and vines and 20 years for all other plants. Designs Anastasiia Kyrylenko discussed the EU design reform, Regulation (EU) 2024/2822, and Directive (EU) 2024/2823. The recent reform includes updated definitions for terms such as "design" and "product." Do not forget to check our Kat’s post for a detailed review of the updated articles and key points. Image courtesy: Seher Moya

If you missed out on The IPKat last week and want to catch up, then join this Kat for a summary of what you missed. Trade Marks and Geographical Indications Katfriend Timothée Charmeil (Elvinger) discussed a recent decision by the EUIPO’s Cancellation Division, which was tasked with deciding whether wine and gin could be considered similar. The applicant argued that according to the “Similarity Tool”, they were indeed similar. Although the Cancellation Division accepted the applicant’s reliance on the Similarity Tool, it emphasised that, as of the date of the decision, the Tool no longer considers wine and gin similar. Consequently, the Division rejected the applicant’s request to invalidate the defendant’s trade mark due to lack of likelihood of confusion. Image by Riana HarveyMarcel Pemsel celebrated Halloween with a decision of the Higher Regional Court of Hamburg concerning the trade mark battle between Globefill and Kefla over similar skull-shaped bottles. The Court held that Kefla’s bottles infringed Globefill’s trade mark, as they posed a risk of trade mark infringement under Art. 130 EUTMR. Moreover, the Court rejected Kefla’s claims that (i) Globefill’s skull-shape lacked distinctiveness, noting that it significantly differed from other bottle shapes on the market, and (ii) the shape added substantial value to its trade mark, reasoning that the mere fact of a design adding some value to the goods is insufficient grounds for refusal. Anastasiia Kyrylenko reported on a recent decision by the Regional Court of Munich, which, arguably for the first time, applied the newly adopted EU Regulation on geographical indications for wine, spirit drinks and agricultural products. The Court held that the shape of “Nürnberger Rostbratwürste” (a protected geographical indication) was neither expressly mentioned in the protected name nor described in the product specification. Furthermore, the assessment of various sausages on the market revealed that the shape and size of Nürnberger Rostbratwürste’s sausages are generic. Therefore, “Mini Rostbratwürstchen” did not infringe Nürnberger Rostbratwürste’s rights to its geographical indication by producing mini sausages. Kevin Bercimuelle-Chamot analysed the EUIPO Cancellation Division’s recent decision concerning the revocation of Baccarat’s trade marks on footwear and textiles. The Cancellation Division was asked to determine whether Baccarat had genuinely used its contested trade mark for a continuous five-year period (i.e., from 14 August 2018 to 13 August 2023). After evaluating the evidence of the contested trade mark’s use in terms of place, time, extent, and nature, as submitted by Baccarat, the Cancellation Division found it insufficient to demonstrate genuine use within the meaning of Art. 58(1)(a) of the EUTMR, and accordingly, revoked Baccarat’s trade mark for scarves and footwear. Copyright Eleonora Rosati shared the key findings of her new article, “Infringing AI: Liability for AI-Generated Outputs under International, EU, and UK Copyright Law” which has been published in the European Journal of Risk Regulation. In the article she addresses three key questions: (i) under what circumstances an AI-generated output may reproduce the work it was trained on, thereby causing copyright infringement, (ii) if an AI-generated output is found to be infringing, who would bear liability for that infringement, and (iii) whether any copyright exceptions may apply, and if so, who could benefit from them. The complete article can be found here. Katfriends Jean-Sébastien Mariez and Laura Godfrin (both Momentum Avocats) discussed a recent French Cour de Cassation decision, which ruled that Steam subscribers could be legally prohibited from distributing the video games they purchase to third parties. With this ruling, the Court rejected the applicability of the principle of exhaustion to digital copies of copyrighted works. Patents Rose Hughes highlighted the priorities that drug companies need to balance when setting their IP strategies for AI-assisted drug discoveries. Drug companies must consider several key factors, including ensuring strong IP protection for the clinical drug candidates, deciding whether to protect AI drug discovery platforms with IP or keep them as trade secrets, and having access to high quality data to develop machine learning models capable of accurately predicting a drug’s clinical efficacy, toxicity, and manufacturability. Rose Hughes also examined case T 2510/18, in which the morality of an invention deriving from dishonest practices was considered. The invention, intended for treating malaria, was argued to have resulted from an immoral research process, involving infringement of the IP rights of indigenous communities over their traditional knowledge. However, the EPO Boards of Appeal concluded that the behaviour of the patentee did not exclude the invention from patentability under Art. 53(a) of the European Patent Convention. Image Rights Eleonora Rosati commented on a decision by the Bologna Court of Appeal regarding the unauthorised use of the image of Duca d’Este on Aceto Balsamico di Modena products. The Court effectively confirmed that cultural heritage assets enjoy a form of perpetual image rights, making it impermissible to use them for commercial purposes without prior authorisation from the competent authority. Book Review Alessandro Cerri reviewed “Designs Law and Practice (3rd Edition)” by RPC. The book demonstrates how designs can be protected via various IP rights. While the book’s primary focus is on the UK, some chapters also touch upon the legal frameworks in the US and the EU, providing a comprehensive practical guidance. Events, News, and Opportunities  Rose Hughes and Verónica Rodríguez Arguijo notified The IPKat readers about a variety of events, news, and opportunities.  Upcoming events include some courses and seminars offered by the University College London, the 10th session of the WIPO Conversation on “Generative AI-IP and Outputs” to be held on 5-6 November, the 34th International Publishers Association Congress between 3 and 6 December in Mexico, and the Geographical Indications Conference 2025.  Some opportunities of the week are senior research fellow/postdoctoral researcher positions in Economics/Management of Innovation at the Max Plank Institute, a postdoctoral researcher position in Information Law at AI, Media and Democracy Lab of the University of Amsterdam, a legal officer in WIPO’s Traditional Knowledge Division, and essay competitions of The SCL AI Group and The International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP).  Finally, this week’s IP news include several key updates: the EPO published a report on patent applications originating from universities, WIPO announced that the twelfth edition of the Nice Classification will enter into force on 1 January 2025, the EUIPO and the European Union Agency for Law Enforcement Cooperation released the report, “Uncovering the Ecosystem of Intellectual Property Crime: A Focus on Enablers”, and the Intellectual Property Office of the UK launched the “Fake Always Breaks” campaign.  For details and further news, do not forget to have a look at our PatKat’s Monday Miscellany post here, and our TechieKat’s latest post here.

While gearing up for Halloween weekend, you might have missed the IPKat last week. Here's what was covered: Copyright Image by Riana HarveyEleonora Rosati commented on Kwantum, a case decided by the Court of Justice of the EU (CJEU) a few days ago. In line with the Advocate General's Opinion, the CJEU held that EU Member States lack discretion to adopt reciprocity clauses under Article 2(7) of the Berne Convention. The Court further clarified that, as the InfoSoc Directive grants copyright protection to original works without regard to their country of origin, the EU opted not to exercise the option of implementing reciprocity clauses. Kevin Bercimuelle-Chamot reported on a decision by the Paris Court of Appeal concerning the copyrightability of architectural works, in the relevant case, an orangery. The Court reaffirmed that French copyright law protects original architectural works. However, after a thorough analysis, it concluded that the orangery lacked originality, as it did not display sufficient artistic creativity or reflections of the author’s personality. Since the choices made by the author were dictated by construction rules, the court eventually rejected the copyright infringement claims brought by Va Evènements. Community Design Katfriend Henning Hartwig (Bardehle Pagenberg; Chair of the Committee for Design Law of the German Association for the Protection of Intellectual Property) informed The IPKat readers about the GRUR Committee for Design Law’s comments regarding a preliminary ruling referred to the Court of Justice of the EU (CJEU). The referring court (Fővárosi Törvényszék, Hungary) sought interpretation of certain provisions of the Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs. After identifying the questions referred to the CJEU and noting that the referring court appeared to have overlooked established case law -since the CJEU had already interpreted most of the issues raised- the GRUR Committee offered its own interpretations of the provisions in question. The GRUR Committee's complete submission can be found here and here. Events Eleonora Rosati reminded The IPKat readers of our upcoming webinar, “Image rights in the age of AI: Less is more or more is better?” which will be kindly hosted by Bird&Bird LLP in two days! If you are curious about protecting one’s persona in the age of AI, deepfakes, and digital replicas, then do not forget to register here! 

If you were too busy to keep up with the IPKat last week, then join this Kat in catching up on some IP news! Patents Gif by Riana HarveyKatfriend Federico Caruso (SIB LEX) discussed a recent ruling by the Munich Local Division of the Unified Patent Court in Syngenta v Sumi Agro. The claimant argued that the defendant had infringed its patent on “Elumis” by developing and marketing a similar product under the name “Kagura” both within and outside the Contracting Member States (CMS). While the defendant contended that the products sold in the CMS differed from those sold outside, and thus from the claimant’s product, the fact that both were marketed under the same brand name (i.e., Kagura) raised concerns. The Court suspected that the defendant might start selling the products sold outside the CMS within the CMS in the future. And as a result, a preliminary injunction was granted, ordering the defendant to stop producing and advertising Kagura within the CMS. Trade Marks Marcel Pemsel commented on the EU General Court’s latest decisions regarding the distinctiveness of colour combination marks (cases T-361/23 to T-364/23). The Court stated that the limited availability of colours must be considered not only for colour and colour combination marks, but also for colour combination position marks. In this instance, the widespread use of the colours in question (i.e., red, yellow, and black) in the agricultural sector both for advertisement, and safety and signalling purposes prevented the arguably specific combination from serving as an indicator of commercial origin for certain goods and services. Copyright Eleonora Rosati examined the recent decision of the District Court of Hamburg concerning the text and data mining (TDM) exceptions under the EU’s Digital Single Market Directive, and emphasised several problematic aspects of the judgement. The Court ruled that LAION could benefit from the TDM exception for scientific research. Although the decision provided some guidance on the relation between TDM and AI training; failing to distinguish between research conducted for commercial and non-commercial purposes, treating TDM as a blanket provision that permits training AI models with copyrighted materials, and equating “lawful access” with “public accessibility” are argued to “unduly simplify” the role and scope of the TDM exceptions. This simplification inevitably makes it necessary to further clarify the proper relationship between TDM and AI training. Book Review This Kat reviewed the book The Routledge Companion to Copyright and Creativity in the 21st Century, edited by Michell Bogre (Parsons School of Design at The New School) and Nancy Wolff (Cowan, DeBaets, Abrahams and Sheppard, LLP). The book’s numerous authors and interviewees explore the current and emerging threats and challenges faced by authors in the 21st century due to technological developments, and assess whether the US copyright law is adequately equipped to address these challenges. Events, News, and Opportunities Eleonora Rosati notified The IPKat readers about a variety of events, news, and opportunities. Upcoming events include a lecture titled “New Technologies and the EU: The Role of the Court of Justice” by M. Maciej Szpunar at Universidade Católica Portuguesa in Lisbon, a webinar to be organised by the Swedish Copyright Society on the harmonization of European copyright law, several evening seminars to be held by the University of Cambridge’s Centre for Intellectual Property and Information Law, and a webinar titled “IP and Startups: What, Why, How” by the 4iP Council. Additionally, she informed about a report provided by a former InternKat, Eleanor Wilson (Mishcon de Reya LLP), on IPSoc’s event, “The UPC One Year On: What Do We Know Now?”. The two opportunities of this week are a postdoctoral researcher position in competition law and digital regulation at Tilburg University, as well as a fellowship opportunity with the Thomas Edison Innovation Law and Policy Fellowship programme. Finally, this week’s IP news include a German court’s decision in which three defendants were found guilty of commercial gang fraud for sending misleading invoices to EUIPO customers, and the US Copyright Office’s new initiative aimed at increasing access to materials in Spanish. For details and further events, do not forget to have a look at our PermaKat’s posts here and here. And if you have not done so already, do not forget to mark 30 October 2024 in your diaries for our own webinar, "Image Rights in the Age of AI: Less is More or More is Better?"!

It is never too late to catch up with the IPKat! If you could not keep up with us last week, then join this Kat for a summary of what you missed. Trade Marks and Geographical Indications Marcel Pemsel argued that being less precise could assist in the battle for distinctiveness, referencing a recent decision of the EU General Court that examined whether the trade mark "Hinterland" lacked distinctiveness and was descriptive. Regarding descriptiveness, the Court found that "Hinterland" and the alcoholic beverages sold under that name did not have a sufficiently direct link, it did not designate a specific geographical area, and it did not inform the public of particular characteristics of those beverages that would lead them to believe the beverages were produced in a specific geographical area. On distinctiveness, the Court concluded that the trade mark was distinctive, as "Hinterland" did not have an immediately perceivable meaning for the relevant beverages, and had not become a generic term.  Image by Riana HarveyKevin Bercimuelle-Chamot reported on a recent decision of the Board of Appeal of the EUIPO concerning the genuine use of a trade mark, and emphasised the importance of submitting “good evidence” to the Board. The Board was tasked with determining whether the EU trade mark “ICE”, owned by Gilmar S.P.A., could be revoked due to non-use. Although the Board acknowledged that Gilmar had made some sales during the relevant five-year period, it could not find any concrete, objective and clear evidence demonstrating the genuine use of the trade mark and, therefore, upheld the revocation application. Katfriends Güldeniz Doğan Alkan and Hatice İnci Turan (Gün + Partners Law Firm) commented on a recent decision of the Republic of Türkiye Court of Cassation concerning the registrability of sounds as trade marks. The Court was asked to decide whether a 32-second-long song could be registered as a sound mark. It ruled that, due to a lack of distinctiveness and the failure to indicate the origin of the goods and services applied for, the “NİLOYA” song was not capable of being registered as a trade mark. Copyright Chijioke Okorie discussed the challenge of accurately and fairly recognising the contributions of key participants in the creation of African language datasets through an “African dataset creation split sheet” case study. After explaining what music split sheets are and introducing a major issue arising from them (i.e., determining the percentage each party has contributed, and thus their percentage of ownership), a parallel with African language datasets was identified. Adopting the approach used for music split sheets could effectively clarify the creation process of these datasets and allow for proper acknowledgement of each party’s contributions. Book Review Katfriend Felicia Caponigri (Founder of Fashion by Felicia and Visiting Scholar at Chicago-Kent College of Law) reviewed the book Transboundary Heritage and Intellectual Property Law: Safeguarding Intangible Cultural Heritage edited by Patricia Covarrubia. The book primarily addresses the issue of protecting transboundary cultural interactions. A recurring theme among the book’s authors is the analysis of the challenge presented by the tension between “cultural fluidity” and “cultural uniformity”, against the dichotomies that exist in cultural heritage law and intellectual property law. News and Opportunities Marcel Pemsel notified The IPKat readers about some events and opportunities. Upcoming IP events include a webinar titled “IP and Startups: What, Why, How” to be organised by 4iP Council, and a panel discussion, “Design rights: Is this their time to shine?” to be held in London. The job opportunity of the week is a postdoctoral researcher position in intellectual property rights and open science at the Karolinska Institute, Sweden. For details and further events and news, do not forget to have a look at our latest “Sunday Surprises” post here.

If you missed the IPKat last week and want to stay up to date on the latest IP events, job opportunities, and key trade mark and copyright cases, join this Kat in catching up! Trade Marks Image by Riana HarveyMarcel Pemsel demonstrated how difficult it can be to prove the distinctiveness of a figurative mark on its own, when it is generally used in conjunction with a word mark. This was exemplified in L’Oréal’s appeal to the Board of Appeal of the EUIPO (BoA) against Guangzhou Ya Ti Ao Jia Cosmetics Co. The BoA dismissed L’Oréal’s appeal due to the weak distinctive character of the rose accompanying the word mark “LANCÔME”, which is acknowledged to have a stronger influence on consumers than the figurative element. The rose figure on L’Oréal’s mark was not deemed sufficiently distinctive, and the submitted evidence did not clearly demonstrate that the rose device alone (separate from the word mark “LANCÔME”) had acquired distinctiveness through its intensive use. Moreover, the distinctiveness of the word component of the contested sign (i.e., ArtÍscare), and the visual, aural, and conceptual comparisons of ArtÍscare and LANCÔME led the BoA to conclude that there can be no finding of a likelihood of confusion based solely on the rose device. Copyright Eleonora Rosati evaluated the recent Opinion of Advocate General (AG) Szpunar in Kwantum v Vitra (Case C-227/23), which primarily addressed the following question: “Can EU Member States, relying on Article 2(7) [of the Berne Convention] (to which the EU in itself is not formally a party), set their own reciprocity rules for copyright protection of works of applied art or is such a possibility precluded by EU law?” According to the AG, the implementation of the InfoSoc Directive means that EU Member States are precluded from freely applying Article 2(7) of the Berne Convention. The AG also clarified that Article 2(7) merely provides an option that member states may choose to exercise, and it is entirely permissible for the EU to decide not to do so. Although this represents only the AG’s opinion, our PermaKat considers it likely that the Court of Justice of the EU will issue a similar judgement, consistent with its established case law. News and Opportunities Anastasiia Kyrylenko notified The IPKat readers about some opportunities and events. Job openings include a postdoctoral researcher and a research assistant position at Maynooth University, as well as an intellectual property lawyer role at Netflix’s London office. Upcoming events include a joint seminar hosted by the European Intellectual Property Office and the Community Plant Variety Office, covering the latest hot topics in the IP world, and a training offered by MARQUES, Stockholm University, and the Swedish Anti-Counterfeiting Group. For details and further events and news, do not forget to have a look at our latest “Sunday Surprises” post here.