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30/12/2020
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ECTA JUNE MEETINGS AND EVENTS
14/05/2021
A lot is cooking for ECTA members in June! Here a glimpse of what to expect: As you know, we are launching soon our new online event concept ECTA Debate Club, a series of educational and networking IP sessions exclusively open to ECTA members for free. The sessions will take place virtually on 15, 17, 25 and 29 June and will be open to a maximum of 30 members to allow interactivity. Places will be assigned on a first come-first served basis, so make sure to apply as soon as the registration opens in the coming weeks! From 21 to 25 June, we will hold online Supervisory Board and Committee Meetings. While the Supervisory Board will discuss ECTA strategic and financial aspects, Committee Meetings will be an invaluable opportunity to network with peers, advance projects and learn about recent case law, legislative and policy developments. Besides, all ECTA members are invited to join us at the Annual General Meeting on 25 June. To consult the schedule of June events, please check the News Section in the private site. We invite you to stay updated by checking the ECTA website, LinkedIn, Twitter and the ECTA APP regularly.
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ECTA TAKES A STAND - POSITION PAPER ON 3D PRINTING AND ITS IMPLICATIONS ON DESIGN LAW BY ECTA
11/05/2021
By Katri Kiviniemi, ECTA Design Committee member, Castrén & Snellman Attorneys Ltd (FI) and Marta Alves Vieira, ECTA Design Committee Secretary, Vieira de Almeida & Associados (PT) ECTA’s Design Committee has been carefully following the developments of industrial 3D and 4D printing and their potential impact on intellectual property rights, particularly in design law and practice. A task force was created within the ECTA Design Committee to monitor the developments in this field and to assess whether a change in the current legislation would be appropriate and recommended in order to deal with the challenges brought by these new technical developments. 3DP is a fast-developing technology, even if it still is somewhat unclear to what extent and how fast it will become more widely spread and used in the industry and in private use. It is, however, clear that this technology and other developing technologies alike are challenging intellectual property laws, and when reviewing changes to these laws, their implications should be anticipated or, at least, taken into consideration. In April 2020, the European Commission launched a Study carried out for the European Commission, entitled ‘The Intellectual Property Implications of the Development of Industrial 3D Printing’ dated February 2020. In June 2020, the Committee had already been engaged in ECTA’s Brief Report on 3D Printing and Comments to this European Commission Study. Moreover, ECTA is strongly committed with the European Union Design Reform project and has already contributed to the Public Consultation with an assessment on design law and protection. This contribution led to the European Commission’s Evaluation of EU legislation on design protection published in November 2020. In this context and based on the ECTA Design Committee’s reflections and discussions in the last years, a Position Paper on 3D Printing and its Implications on Design Law has been approved and submitted by ECTA to the European Commission in April 2021. This paper addresses several aspects of the design law to be carefully evaluated in relation to 3D printing. Firstly, the definition of a product should be reconsidered to clearly include new technologies. In this sense, a design within a CAD file should be considered a ‘product’ and a CAD file encompassing the design of a digital item should be eligible for design protection. Besides, the defence available for acts done privately and for non-commercial purposes in accordance with the Design Regulation should be interpreted narrowly. However, it may be too early to fully understand the practical implications of the use of this exemption considering that widespread use of the 3D printing technology is not yet a reality. Therefore, it may be too early for an actual change in the law in this aspect. Also, it would be relevant and necessary to explicitly include contributory infringement in the design law to provide legal clarity and more effective tools for rights holders in defending their right. Considering the potential impact of 3D printing in relation to spare parts, it is advisable to maintain limited and balanced protection for spare parts. In line with the ‘ECTA Position Paper – Designs and Spare Parts’ published back in 2016, it is useful to explore alternatives to achieve a balance between total liberalisation (removing all design protection from items categorised as spare parts) and full exclusivity of design rights in spare parts (even if time restricted). Finally, considering that there is already a multitude of legal tools, including other IP laws in place to stimulate innovation and control the markets, at the time being there is no further need for a specific sui generis law to govern 3D printing technology. Moreover, ECTA does not see any clear obstacles to further amending the current EU design laws to cover the implications of 3D printing or other related foreseeable digital technologies (such as 4D printing).
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ECTA WEBINAR ON SLOGANS (18 MAY 2021)
11/05/2021
Don’t forget to register for the ECTA webinar “Slogans..but made for branding. A new threshold for registrability of slogans after Oatly?” - 18 May 2021 (14.00-15.30 Brussels time)! ECTA Second Vice-President Carina Gommers (Wiggin, BE) will moderate a high-level panel of speakers comprised of Klaudia Błach-Morysińska (Zaborski, Morysiński Law Office, PL), Luc Suykens (UBA,BE), and Bart ten Doeschate (Heineken International, NL). How easy is it to register slogans, should they be registered, and what can be done to ensure their protection? After an overview of relevant EU judgements, including the last ‘milky’ case, our speakers will discuss the degree of distinctiveness required and whether it will be easier to register slogans as trade marks. They will also provide insights from a marketing perspective, such as how a slogan is practically developed as well as address in-house legal challenges around this topic. The webinar will be held in English via the Zoom Webinar platform. The cost is: • ECTA members - 40,00€ • Non-members - 65,00€ • Students and full-time academics - 15,00€ • Officials - Free of charge Upon request, you will receive a certificate of attendance, in order to ask for CLE credits from your national Bar Associations, if applicable. Secure your place, please REGISTER HERE!
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SMEs fund - third application window is now open
05/05/2021
SMEs can apply for financing support under the new Ideas Powered for Business SME Fund until 31 May 2021. This is the third of five windows for applications that will be open in alternate months until September 2021. The Fund is a € 20 million grant scheme to help enterprises in the EU, that fit the official definition of a SME, access their IP rights. Applications can be made for financial support in the form of reimbursements for trade mark and design application and for IP pre-diagnostic services (IP scan) available at participating national and regional IP offices*. Each SME that applies can be reimbursed up to a maximum amount of € 1.500. Thanks to the efforts of some User Associations, including ECTA, professional IP representatives can now assist SMEs in deciding about the services offered through the SME Fund as well as requesting the funding in their name. This is a change in comparison to January window 1. Kindly note that next applications windows will be open according to the following timetable: Window 4 (1 July 2021 - 31 July 2021), Window 5 (1 September 2021 - 30 September 2021). Full information about the requirements and how to apply for financing support can be consulted on the EUIPO website here. Grants are awarded on a first come, first served basis. *Before applying, you should check the list to ensure that the IP office in your Member State offers this service.
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EUIPO TUESDAY WEBINARS IN MAY
05/05/2021
The EUIPO’s Academy offers webinar courses every Tuesday. These sessions are open to all and a live chat with the speakers will be made available. Please note that the recorded webinars are available on the EUIPO learning portal after the broadcast. The May schedule of the webinars is as follows: Tuesday 11 May, 10:00-11:00 (CET): Register and fees operations – the great unknown - Advanced Tuesday 18 May, 10:00-11:00 (CET): Proof of Reputation: What evidence to submit - Intermediate Tuesday 25 May, 10:00-11:00 (CET): Plant Variety Rights: insights and tips for enforcers - Intermediate Tuesday 25 May, 15:00-16:00 (CET): Judicial Cooperation Study Visit the Academy's Calendar to access the webinars and see the latest updates for the upcoming months. On the EUIPO Learning Portal you can also find the following eLearning courses: - AG examination of trade marks that refer to the content of the goods and services - Intermediate - Link - AI & IP at the crossroad - Intermediate - Link - Digital Services Act: new rules of the game - Intermediate - Link For further information please visit the Academy's Learning Portal
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EUROPEAN COMMISSION LAUNCHED A PUBLIC CONSULTATION ON NON-AGRI GIs
04/05/2021
The European Commission recently launched a Public Consultation on the EU-wide protection of geographical indications for non-agricultural products (such as handicrafts and industrial goods). Since there is no harmonised mechanism for the protection of such products, the IP Action Plan adopted on 25 November 2020 announces that the Commission will, on the basis of a thorough impact assessment of its potential costs and benefits, consider the feasibility of creating an efficient and transparent EU protection system. The purpose of the consultation is to collect views of all relevant stakeholders on the issues related to the existing legal protection of these products within the internal market; on the benefits and risk of EU action; on the available policy options, including the control and enforcement of a future EU-protection system; and on the potential impacts of these policy options. ECTA already contributed to the Inception Impact Assessment (IIA) last year and will also provide input to this consultation. The results will contribute to the decision on the best way forward.
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EUROPEAN COMMISSION LAUNCHED A FURTHER OPEN CONSULTATION ON DESIGN PROTECTION
29/04/2021
The European Commission launched a further public consultation to support the review of the Community Design Regulation and the Design Directive. The purpose is to serve as complement to the extensive public consultation on design protection already carried out. It aims at gathering (additional) views of all those affected by design protection in Europe on selected issues, potential options and their consequences for reform not specifically addressed previously. During the process of the EU Design legislation reform, ECTA submitted input several times, including input in joint papers with INTA and MARQUES, joint comments on the Inception Impact Assessment as well as a number of individual ECTA position papers and comments/contributions on designs. ECTA is also planning to submit a response to this consultation.
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THIRD COUNTRY REPORT PUBLISHED BY THE EUROPEAN COMMISSION
29/04/2021
The European Commission has just published the Third Country Report. The main objective of this Report is to identify third countries in which the state of IPR protection and enforcement gives rise to the greatest level of concern and establish an updated list of so called ‘priority countries’, split into three categories: Priority 1: China Priority 2: India, Indonesia, Russia, Turkey and Ukraine Priority 3: Argentina, Brazil, Ecuador, Malaysia, Nigeria, Saudi Arabia and Thailand China continues to be a Priority 1 country because of the dominant share of counterfeit and pirated goods arriving in the EU, in terms of both value and volume. More than 80% of the seizures of counterfeit and pirated goods by EU customs authorities originate from China and Hong Kong. In addition, the Report dedicates a section to some countries with which the EU has already concluded or is about to conclude free trade agreements and where there is a particular need to monitor the IP situation. This category includes Canada, South Korea, Mexico and Vietnam. The Commission will also closely monitor the situation in other countries where IP enforcement gives rise to concerns, such as Israel, Morocco, Paraguay, the Philippines, South Africa, Switzerland and the United Arab Emirates. Furthermore, the Report includes details of the different EU activities in the context of IPR, such as the EU Funded programmes.
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Happy World IP Day! Join ECTA with 50% discount today only!
26/04/2021
Happy World IP Day! This day is observed to highlight the role that IP rights play in encouraging innovation and creativity, as well as the importance of protecting intangible assets. ECTA, as one of the leading IP associations in the EU, is proud to represent our professional category, serve its members and actively strive for a balance of IP rights for over 40 years. To celebrate this day, ECTA offers a 50% discount on the applicable membership fee for all categories of members TODAY ONLY! This offer is only valid for those who have never been an ECTA member before and who submit a fully completed application form by the end of today, 26 April 2021! (Or click on 'Become a Member' in the ECTA front page)*Kindly note that late applicants cannot benefit from this opportunity. We are looking forward to welcoming you to the ECTA Family!
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EUIPO – FEWER PAPER COMMUNICATIONS AS OF 15 MAY 2021
20/04/2021
The EUIPO will gradually diminish paper consumption during proceedings as of 15 May 2021, to make communications more agile and reduce the impact on the environment. For future outgoing electronic communications, the Office will include links to download attachments from the EUIPO website, instead of providing them in its notifications. For communications currently sent by post, users will have to create a User Area account to download attachments from the links. When users need to submit documents already submitted in another proceeding, these should be sent in the form of a link rather than resent as attachments. In fact, the documents will already be available in the Office system via the User Area. The EUIPO will adopt a transition period of 6 months during which users will receive both printed attachments and links to attachments on the website through the User Area.
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ECTA MEMBERS’ VOICE: HALLOUMI VS BBQLOUMI CASE
16/04/2021
By Ozlem Futman, ECTA Geographical Indications Committee Member, Ofo Ventura (TR) Verifier: Sozos-Christos Theodoulou, ECTA Past President, Advisory and International Trade Committee Member, The Law Offices of Dr. Christos A. Theodoulou LLC (CY) In Case T 328/17 RENV, on January 20, 2021, the Second Chamber of the General Court (GC) granted its decision on EU figurative mark BBQLOUMI. Background to the dispute M. J. Dairies EOOD filed an application on 9 July 2014 for the registration of an EU trade mark for the sign BBQLOUMI for the following goods and services: Class 29: Dairy products and dairy substitutes; cheese; processed cheese; cheese products; cheese dips; meat extracts; prepared dishes consisting wholly or substantially wholly of meat or dairy products; Class 30: Sandwiches; crackers flavoured with cheese; condiments; sauces; cheese sauce; foodstuffs made from cereals; Class 43: Restaurant services; fast food restaurant services; cafeterias; catering. The Foundation for the Protection of the Traditional Cheese of Cyprus Named Halloumi (‘the Foundation’), opposed it entirely based particularly on the earlier EU collective word mark HALLOUMI, registered under number 1082965, designating goods in Class 29 for ‘cheese’. The grounds of the opposition were those set out in Article 8(1)(b) and (5) of Regulation No 207/2009 (now Article 8(1)(b) and (5) of Regulation 2017/1001). The Opposition Division of EUIPO rejected the opposition and the Foundation Appealed. EUIPO’s Fourth Board of Appeal The Board rejected the Appeal by stating that, notwithstanding its status as a collective mark, the opponent’s mark was weak because ‘halloumi’ designated a particular type of cheese produced in a certain way in Cyprus and having particular characteristics associated with its composition and taste, in the sense that there was longstanding use of that term as a generic name. While evaluating the case in terms of global assessment of likelihood of confusion, the Board concluded that the evidence submitted by the applicant demonstrated, at the very most, that the term ‘halloumi’ was used throughout the EU as a generic name for a specialty cheese from Cyprus, and that such evidence was insufficient to establish intensive use as a trade mark designating cheese, where that finding applied with respect to use in both Cyprus and Greece, as the applicant did not submit any evidence of the actual perception of the mark HALLOUMI, other than as a type of cheese. The Board found no likelihood of confusion between the signs, by considering the marks phonetically and conceptually dissimilar, and visually similar to a low degree. Regarding the goods and services, the Board considered that the opposition was relevant only for the goods in Class 29, with the exception of ‘meat extracts’, and for goods in Class 30; yet not for services in Class 43 since they were different from cheese. The Board also found that the opponent did not manage to prove that the opposed mark would have taken unfair advantage of the distinctiveness or the repute of the earlier mark or that it was detrimental to it. General Court The Foundation brought the issue to the attention of the General Court (GC) by criticising the EUIPO: 1) for erroneously characterising the meaning and effect of EU collective marks, by following the reasoning of the General Court in the judgments of 13 June 2012, Organismos Kypriakis Galaktokomikis Viomichanias v OHIM – Garmo (HELLIM) (T 534/10, EU:T:2012:292), and of 7 October 2015, Cyprus v OHIM (XAΛΛOYMI and HALLOUMI), T 292/14 and T 293/14, EU:T:2015:752); 2) for misconstruing Articles 66 to 68 of Regulation 207/209 (now artic. 74 to 76 of Regulation 2017/1001) since, by their nature, collective marks do not serve to distinguish a single commercial origin, but could, in any event, indicate geographical origin; 3) for wrongly considering the opponent’s mark generic, thus depriving it of any distinctiveness; 4) for wrongly considering that the differences between the marks were sufficient to avoid a likelihood of confusion, by finding the opponent’s collective mark’s lack of distinctiveness; Through its unpublished judgment in 2018, the GC dismissed the action, in essence, by concluding that the EUIPO did neither err in its assessment of the characteristics and nature of EU collective marks, nor about the distinctiveness of the earlier mark in dispute. The GC shared the EUIPO’s opinion that the average EU consumers would perceive the word ‘halloumi’ to denote a particular type of cheese produced according to certain features and had done so for a long time, but not to its belonging to anyone who marketed the product in question to a special association of producers or traders. The GC also found that, even though the opponent’s mark was a collective mark, the degree of its distinctiveness was low. Although the word element of a mark, in principle, is more distinctive than its figurative element, in the present case, said the GC, the relevant public’s attention would be drawn to both the word element ‘bbqloumi’ and the figurative element in the mark, thus the EUIPO did not make any error in finding that those two elements dominated the overall impression in the opposed mark, plus in terms of the word element more weight had to be given to its initial part, ‘bbq’, than to its final part, ‘loumi’. Meanwhile, visual similarity between the signs was deemed weak because the element ‘loumi’ did not occupy a separate position in them. Yet for the GC, the EUIPO had made two errors in its decision: 1) by finding the marks phonetically and conceptually different, instead of stating that they were similar to a low degree; 2) by finding no likelihood of confusion, if there was a low degree of similarity between the signs. THE CJEU When the Foundation appealed the original judgment before the Court of Justice of the EU (CJEU), it alleged infringement of the EU collective marks regime, then misinterpretation of the case-law and infringement of Articles 8(1) (b) and 65(2). The CJEU, by its judgment of 5 March 2020, set aside the original judgment and referred the case back to the GC. The Court underlined some general points as: - For collective marks the likelihood of confusion had to be understood as being the risk that the public might believe that the goods or services covered by the earlier mark and those covered by the mark applied for all originate from members of the association, which is the proprietor of the earlier mark or, where appropriate, from undertakings economically linked to those members or to that association. - Since there is no provision on the contrary and pursuant to Article 66(3) of the Regulation 2017/1001, the same criteria for likelihood of confusion in terms of Article 8(1) (b) are also applicable to EU collective marks. - When an association applies for registration of an EU collective mark, which may designate a geographical origin, it is incumbent to ensure that sign has elements which enables the consumer to distinguish the goods or services of its members from those of other undertakings. Accordingly, the degree of distinctiveness of that mark is a relevant factor for the purposes of assessing likelihood of confusion. Going back to the present dispute, the CJEU shared the GC’s opinion, which had found the degree of distinctiveness of the opponent’s mark to be weak. Yet, for the CJEU, the GC made an error where it relied on the premise that, if the earlier mark has weak distinctiveness, then the existence of a likelihood of confusion had to be ruled out because the weak distinctiveness of the earlier mark would not permit such a likelihood. So, the CJEU referred the case back to the GC by indicating that the GC should have made a global assessment to see whether the low degree of similarity of the marks at issue was offset by the higher degree of similarity, or even identity, of the goods covered by those marks, according to criteria established by the case-law relating to article 8(1)(b) of the Regulation. General Court’s Decision The GC first ruled that since the CJEU did not declare its assessments unfounded about the characteristics and scope of EU collective marks and the distinctiveness of the earlier mark, it would only focus on likelihood of confusion in terms of article 8(1) (b) of the Regulation and the case-law relating to it. The GC determined the relevant territory as the European Union and the relevant public as being the general public whose level of attention is average when purchasing the goods in question. As regards the comparison of the goods and services, it stuck to its view in its original judgment, namely finding the goods in the opposed mark identical in part and similar in part to some degree with cheese in the Foundation’s earlier mark, but not finding any similarity to services in Class 43 or to ‘meat extracts’ in Class 29. The Foundation particularly criticised the EUIPO for not having taken into consideration the figurative element (depicting grilled cheese on a barbecue) in the opposed mark and thus making an assessment that there was no conceptual similarity between the marks. According to the Foundation, consumers, particularly in the UK, associated halloumi cheese with cooking on a barbecue. That finding, supported by the Mediterranean context to which the graphic representation composing the mark applied for refers, should lead to a finding of similarity between the signs and, therefore, of a likelihood of confusion having regard to the identity or similarity of the goods and services which the marks at issue designated. Moreover, the Foundation insisted that the word ‘bbqloumi’ should be considered as a ‘portmanteau mark’, namely a mark consisting of two very easily recognisable word elements. It argued that the ‘bbq’ part in the opposed mark lacked any distinctiveness, yet the common part in both marks ‘loumi’ had a certain degree of distinctiveness. Indeed, in parts of the EU ‘bbq’ is a synonym of ‘barbecue’ whereas ‘loumi’ had no meaning other than being the abbreviation of the term ‘halloumi’, thus the marks were similar with respect to the only distinctive element available. The GC, while making its global assessment, first focused on the common part in both words, namely the component ‘loumi’ and concluded that this part gave a low degree of visual, phonetic and conceptual similarity. It agreed that to some extent the large part of the relevant public may perceive the grilled food in the figurative element as being halloumi cheese, yet ruled that, when consumers saw the word element of the mark in dispute, their attention would be drawn more to the initial part of the word element ‘bbq’ rather than the last part ‘loumi’. The GC did not deny the fact that the figurative element in the mark supported to some extent the concept conveyed by the word element, namely that the halloumi cheese is cooked or grilled on the barbecue. Nevertheless, the GC found the figurative element more related to the concept of barbecue than to the halloumi cheese produced in a Mediterranean environment, because it was not possible to state categorically that the goods represented were pieces of halloumi cheese. The GC also pointed out that the figurative element in the mark applied for played a differentiating role because the Foundation’s mark was a word mark without any figurative element. For the GC the ‘loumi’ element contributed very little to the distinctiveness of the mark applied for because ‘bbq’ catches the relevant public’s attention the most and because the Foundation’s mark had a weak degree of inherent distinctiveness. By referring to case-law, the GC acknowledged that just because the earlier mark had weak distinctiveness, this per se did not automatically mean that there would not be a likelihood of confusion. Yet, the GC said, in the present case, the component that both parties’ marks share, ‘loumi’, itself had weak inherent distinctiveness and this impacted negatively on the global assessment for similarity in terms of likelihood of confusion. The GC focused its analysis on the weak degree of inherent distinctiveness of the opponent’s mark because it shared the EUIPO’s assessment that the evidence submitted by the Foundation did not allow a finding that consumers, confronted with the earlier mark, would associate it with something other than halloumi cheese. As to the Foundation’s argument about the message that the applied mark conveyed when the figurative element and the analysis about the word element were considered together, the GC ruled that did not differ significantly from the relevant factors relied on in the global assessment of the likelihood of confusion. So, the whole action was dismissed. Post Scriptum: On 24 March 2021, the GC dismissed another action (T-282/19) brought by the Foundation against a Greek company producing cheese under the figurative sign ‘Halloumi Vermion’, following a similar line of thinking to the above analysed judgment. However, a few days later, on 29 March 2021, the EU Commission unanimously approved the registration of halloumi as a Cypriot Protected Designation of Origin (PDO), a new fact which is expected to bring ground-breaking modifications as to the legal protection of halloumi.
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EUIPO TUESDAY WEBINARS IN APRIL
07/04/2021
The EUIPO’s Academy offers webinar courses every Tuesday at 10:00 am. These sessions are open to all and a live chat with the speakers will be made available. Please note that the recorded webinars are available on the EUIPO learning portal after the broadcast. The April schedule of the webinars is as follows: Tuesday 13 April, 10:00-12:50 (CET): New Common Practices 2021: new types of trade marks and appeal proceedings - Basic Tuesday 20 April, 10:00-11:00 (CET): Digital infringement study - Intermediate Tuesday 27 April, 10:00-11:00 (CET): Webinar for SMEs - Basic Visit the Academy's Calendar to access the webinars and see the latest updates for the upcoming months. On the EUIPO Learning Portal you can also find the following recently published eLearning courses: AI & IP at the crossroad - Intermediate - Link The multifaceted notion of bad faith - Intermediate - Link New 2021 edition of EUIPO Guidelines - Intermediate - Link Basics of surveys for legal evidence - Intermediate - Link For further information please visit the Academy's Learning Portal
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UPDATE ON THE EU GC/CJ CASE-LAW OVERVIEW
01/04/2021
The Litigation Service of the EUIPO Boards of Appeal has updated the overview of Case-Law from the General Court (GC) and Court of Justice (CJ) of the EU. The document includes a compilation of the key points of judgments and orders rendered by the GC and CJ in 2019 and until August 2020 on actions brought against decisions taken by the EUIPO Boards of Appeal in trade mark and design matters. It also includes key points of judgments rendered by the CJ in preliminary rulings on IPRs and their enforcement. Key points consist of new or infrequent statements or statements that, while not new, are relevant in confirming established case-law. The full text of the Overview is available HERE. You can access the full text of judgments and/or orders by browsing the EUIPO eSearch Case Law database.
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The EUIPO published the Study on Dynamic Blocking Injunctions in the EU
23/03/2021
The number of websites offering unlawful downloads of music, films and games as well as unlawful live broadcasts of sporting and events increased during the COVID-19 pandemic. In order to explore the effectiveness of legal remedies against piracy, the EUIPO, in cooperation with the CEIPI (Centre d'études internationales de la propriété intellectuelle), prepared a Study that provides an overview of static and dynamic blocking injunctions available for right holders in the EU. These remedies to prevent IPR infringement include website-blocking injunctions effected through Domain Name System blocking, Internet Protocol address blocking, or Uniform Resource Locator filtering. The Report also provides an overview of the relevant case law of the CJEU and national courts. If you would like to read the full report, please click here. --- ECTA is one of the leading organisations within the European Union that promotes the improvement of the IP system by collaborating with relevant Institutions (e.g. European Commission, WIPO, EUIPO, etc.). ECTA brings to its members the latest news and developments in the field of IP
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ECTA MARCH BULLETIN IS OUT!
22/03/2021
Many interesting updates in IP are waiting for you in the March edition of the ECTA Bulletin! You will find an interview with ECTA President Anette Rasmussen about her path to the ECTA presidency, her vision for the association as well as other professional and personal insights. Among the numerous engaging articles, you will learn more about recent EU case law on the notion of ‘genuine use’ and its requirements, the new Greek Trade Mark Law, the Copyright aspects of E-Sports, the concept of reputation in GIs, and the Digital Service Act. You will also find the review of a book on the Trade Secrets Directive and analysis of recent decisions, this time on the likelihood of confusion, nature of bad faith, and well-known trade marks, as well as deep-dive into the work of ECTA Committees through reading their reports. Not to be missed: our warm welcome to the new members of the ECTA family! For ECTA members the print-friendly pdf version is available in the Library section of the ECTA Private Site. Enjoy reading it! If you would like to contribute to the next ECTA Bulletin or other ECTA publications, please contact our Publications Committee at ecta@ecta.org
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ECTA events 2021
17/03/2021
Dear colleagues, I hope you are well and looking forward to learning of the exciting events ECTA has planned for 2021. Despite the pandemic still having an impact, also on travelling, we are planning to revert to physical events this year! Below is the outline of our events – do mark these dates in your calendar! In February we held our Alicante Roundtable and in March last week we held the ECTA ®etreat, both very successful in virtual format. In May, we will hold our next roundtable, so look out for more information on this. During two weeks from 14 to 30 June, we will hold our Annual General Meeting, Supervisory Board and Committee Meetings in a virtual format, as well as introduce ECTA DEBATE CLUB, a series of meetings only for ECTA members. Detailed information will follow. We hope you will enjoy this new concept. Our Annual Conference will be moved to 21-22 October this year! It will be in a hybrid format, so we look forward to welcoming some of you in Vienna. Detailed information will follow. Finally, we will hold a roundtable also in the beginning of December. I count on your support and hope to see you at ECTA’s events this year! Kind regards, Anette Rasmussen ECTA President
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JUDICIAL COOPERATION REPORT PUBLISHED BY THE EUIPO
16/03/2021
The EUIPO has just published a Report on international judicial cooperation within the EU and internationally in online IP infringement cases for the benefit of right holders, law enforcement agencies, judiciary and policy makers. The study looks at the legislative measures available for judicial cooperation in civil, administrative and criminal cases of online IP infringement, also providing practical examples of successful applications thereof. The reason for this report is the quick evolvement of the online environment where IP criminals take advantage of anonymity technologies, the Darknet and its hidden services as well as the borderless nature of the internet to avoid detection, enforcement action and sanctioning. As identifying suspects and collecting evidence have become more difficult, combatting online IP infringement increasingly requires cooperation and exchange of expertise and information among the judiciaries, regulators and agencies. To read the report, please click here. --- ECTA is one of the leading organisations within the European Union that promotes the improvement of the IP system by collaborating with relevant Institutions (e.g. European Commission, WIPO, EUIPO, etc.). ECTA brings to its members the latest news and developments in the field of IP
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ECTA Members’ Voice: The fight against counterfeit cannot be only legal. Technological solutions are essential to increase the effectiveness of anti-counterfeiting strategies - The Observatory publishes an Anti-Counterfeiting Technology Guide.
11/03/2021
By Caroline Casalonga, ECTA Anti-Counterfeiting Committee Member, Casalonga (FR) The Observatory has just published a very interesting Anti-Counterfeiting Technology Guide, which aims to give companies an overview of the different technical solutions available on the market to fight against counterfeit. The different technologies are presented in five main categories: - Electronic; - Marking; - Chemical; - physical, mechanical; and - technologies for digital media. For each technology presented, a definition is given together with a description of the main characteristics, uses, implementation requirements and information relating to costs. The Guide also includes information on blockchain and ISO standards that can be applied. 1) Electronic technologies Electronic technologies enable the goods to be uniquely identified, authenticated and tracked. As such, RFID that uses radio frequency technology may recognize an object remotely with an electronic tag that enables product traceability and identification throughout the entire supply chain. Active RFID tags have their own battery, a transmitter and a receiver allowing the right-holder to follow the product anywhere. 2) Marking technologies Marking technologies enable to mark the product with a unique security feature in order to authenticate the product. The marking can be optical with a laser reading machine, a QR code or barcode, a hologram or different types of ink (UV sensitive or reactive). 3) Chemical technologies The main purpose of these technologies is authentication without simultaneous unique product identification. Specialised hardware or laboratory tests are needed to read and verify the markers they create. This makes it very difficult for third parties to reproduce similar markers. There are different types of chemical technologies: DNA, chemical encoding and tracer, glue coding, surface fingerprint and laser surface analysis. Chemical technologies include DNA coding which is very interesting as it is compatible with all types of material and can be used in bottles containing alcohol (for wine and spirits but also for perfumes and fuel). DNA coding implants molecules containing specifically generated DNA codes (or DNA markers). The basic DNA sequence may be modified to create an almost unlimited number of unique markers, which can be used to individually identify each of the articles being protected. DNA markers can be applied to all types of material, meaning that they can be applied both to products and their packaging. The tags are invisible to the naked eye and are stable and permanent. They have a low environmental impact and are non-toxic. The DNA is quick to apply and only the tiniest amount is needed – the DNA to material ratio is absolutely miniscule – which leaves the product properties unaffected. Specific tests must be carried out by specialised laboratories to detect and verify the implanted DNA codes. 4) Mechanical technologies Most mechanical solutions take the form of different types of labels that usually need to be authenticated via an automatic reading device, such as a barcode reader, or simply with the human eye. Those include labels, laser engraving, anti-alteration devices, seals, security threads and security films. Traditionally, security threads are used in bank notes. Security threads can be very thin, almost invisible. Those can be painted with special light sensitive pigments, microprinted, or magnetised. There are new developments for use of such threads in apparels and shoes but also for attaching and/or sealing. These are used, for example, to attach tags to clothes or products and as micro-seals for warranty purposes. 5) Technologies for digital media There are four types of anti-counterfeiting technologies for digital media, which fall into two main categories: digital rights management (DRM) systems and automatic content recognition technologies. DRM systems are designed to combat large-scale counterfeiting of audio-visual works. They are used by copyright and other associated rights holders to protect, exercise and manage their rights in the digital environment. Automatic content recognition technologies aim to identify content that is in a media file or being played on a device. Those technologies include digital watermarks, hashing and fingerprinting. The study emphasises that the defence against counterfeiting may be reinforced by combining anti-counterfeiting technologies with the blockchain (shared ledger) technology as it provides a reliable means of tracing all the transactions that take place throughout a supply chain, from production to the shop. It is built around a decentralised peer-to-peer system and is essentially a database (ledger) of verified asset exchanges that is stored simultaneously on all the computers connected to the network. As it does not depend on a central server, it has no single point of failure. An example of use of the blockchain to fight counterfeit is in the pharma field. A unique ID (hash) is assigned to each pack of medicine produced. The said unique ID is generated and registered in the blockchain. It can be used throughout the distribution channel. The pharmacy selling the product can verify the pack ID to check that the medicine is genuine. While counterfeit is spreading all over the world, the combination of these different technologies with the blockchain will allow any person in the chain, from the right holder to the consumer, to verify whether the product is genuine or not. ---- The views expressed are those of our members and not necessarily of ECTA as an association. The content has not been subjected to a verification process, the accuracy of the information contained in the article is responsibility of the author.
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ECTA (R)ETREAT, 10 MARCH 2021 (VIRTUAL EVENT)
10/03/2021
The 2021 edition of the ECTA (R)etreat entitled 'Case Law of the EUIPO Boards of Appeal and German Courts in relation to trade marks and designs' is coming up on 10 March 2021 (15:30-18:00 Brussels time) and is co-organised with Müller Schupfner & Partner, DE. The event is usually organised in March in one of the largest cities in central Europe, though this year’s edition will be taking place online, allowing a larger number of IP professionals to benefit from a high-level discussion. Seize this chance and sign up free of charge! You will be welcomed by ECTA President Anette Rasmussen (AWA, DK) who will introduce the event and the Association before handing over to our skilful moderator Marie-Christine Seiler (ECTA Harmonization Committee Vice-Chair, Müller Schupfner & Partner, DE) and speakers: Lars Meinhardt (Judge at the Higher Regional Court Munich, 29th Civil Senate, DE), Harri Salmi (Member of the Boards of Appeal, EUIPO, ES) and Christoph Bartos (Member of the Boards of Appeal and Mediator, EUIPO, ES). Kindly note that the event will be in English, while some presentations will be in the German language (no translations or subtitles will be provided). To consult the programme, please click here. Upon request, you will receive a certificate of attendance, in order to ask for CLE credits from your national Bar Association, if applicable. CLE credits are awarded or are positively considered by the responsible authorities in the Benelux, France, Poland, Germany, Estonia, Italy, UK, Cyprus, Hungary, Romania and Lithuania, among others. ECTA has contacted the responsible organisations in all other Member States, where CLE credits are required. If you would like to secure your virtual place, please REGISTER HERE. ---
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ECTA Members’ Voice: European Commission launches process for transfers of personal data to UK
09/03/2021
By Patrick Wheeler, ECTA Data Committee Member, Collyer Bristow (UK) The European Commission (EC) has started the process for the adoption of two adequacy decisions for transfers of personal data from the EU/EEA to the UK, under both the GDPR and the Law Enforcement Directive - Data protection: draft UK adequacy decision (europa.eu). The UK has already declared adequacy for the EU/EEA in respect of transfers out of the UK. There are procedures to monitor and review these EC decisions to ensure that UK laws do not diverge from the GDPR. These decisions still require to be thoroughly reviewed by the European Data Protection Board (EDPB), representing the various EU Data Protection authorities. It cannot be assumed that the EDPB will simply rubber stamp the EC decisions, but both sides are obviously now much more hopeful that approval will be given. The temporary current arrangement from the trade deal between the EU and UK regarding the transfer of data will continue until 30 April and can be extended until 30 June, so the EDPB will be strongly encouraged to report back to the EC quickly, so the EC can proceed and hopefully make an adequacy decision by either the earlier or the later date. If adequacy is granted, then the decision will last for 4 years initially, with the option to renew beyond that period. ---- The views expressed are those of our members and not necessarily of ECTA as an association. The content has not been subjected to a verification process, the accuracy of the information contained in the article is responsibility of the author.
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