Newsletter March 2022
Patent law
The European Commission opens for feedback on a possible unitary SPC and/or single unified procedure for granting national SPCs
In an attempt to combat the fragmented national SPC systems in the EU, the European Commission is looking into the possibility of introducing a unitary SPC, and/or a single procedure for granting national SPCs. The initiative is still in an early state and stakeholders in the industry currently have the opportunity to provide feedback and remarks on the ideas. The feedback period runs until the 5th of April 2022.
The European Commission’s “Call for evidence”-paper can be found here.
Russia introduces new legislation to suspend protection of foreign patent rights
In response to sanctions imposed on Russia, the Russian government has announced measures to suspend the protection of certain foreign IP-rights. The decree states that foreign patent holders from “unfriendly countries” are no longer entitled to economic compensation for patent infringements. The Russian government has announced that it is considering further legislation, which could impact other foreign IP-rights. In response the EPO has ceased all cooperation activities with the national patent offices of Russia, Belarus, and the Eurasian Patent Organisation.
You can read our full article on the matter here.
Trademark law
The wordmark ”NÜ” was not infringed by a figuremark consisting of the letters “N” and “U” - The Danish Maritime and Commercial High Court’s decision of March 14th, 2022
The Danish Maritime and Commercial High Court concluded that there was no likelihood of confusion between the wordmark ”NÜ” and the figuremark “NU”, even though they were both used for women’s clothing. The wordmark was seen as having a low level of distinction due to only being two letters long, and it was therefore not infringed by the figuremark, which was pronounced differently and contained a visual identity beyond the letters themselves.
The decision can be read in Danish here.
A jewellery company had the trademark right to the word “Heindorf”, and could therefore bar Sanne Heindorf from using it as a trademark and company name - The Danish Maritime and Commercial High Court’s decision of March 4th, 2022
A jewellery company owned the trademark rights to “MADS HEINDORF JEWELLERY” and “HEINDORF”, while the defendant Sanne Heindorf ran a business under the name “Heindorf Diamonds”. Under Danish trademark law individuals are allowed to use their own name or surname as a mark or company name, even if there is a similar trademark on the market, unless the use constitutes unfair marketing practice. The Danish Maritime and Commercial High Court found that the use in question was unfair marketing practice, as the marks were too similar and were used for the same type of goods.
The decision can be read in Danish here.
Fazer had not established a trademark right to the shape of the Dumle-lollipop, and the packaging of a similar product did not constitute an infringement - The Danish Maritime and Commercial High Court’s decision of March 22nd, 2022
In this decision, the Danish Maritime and Commercial High Court firstly found that Fazer had not used the shape of the Dumle-lollipop as a trademark in Denmark. Secondly, the Court also concluded that the sale of a lollipop with the same shape did not constitute unfair marketing practices, as the shape of the product was dictated by the machine that made the lollipops. Lastly, the Court did not find that the packaging of the new product, which used a similar color scheme to Fazer’s Dumle, constituted an infringement of the Danish Marketing Practices law.
The decision can be read in Danish here.
Design- and copyright law
EUIPO releases report on AI’s impact on infringement and enforcement of copyright and designs
EUIPO has released a comprehensive report which, among other things, highlights 20 scenarios where AI technologies can be used to either infringe or enforce design rights and copyrights. The report especially highlights machine learning as a possibility in IP-enforcement, as it allows for large amounts of data to be located and analyzed for possible infringements.
The report can be read in full here.
Costs awards raised in preservation of evidence proceedings regarding possible copyright and market practices infringement - The Danish Supreme Court’s decision of March 16th, 2022
The Danish Supreme Court ruled that the DKK 25.000, given in cost awards by the Danish High Court (Eastern Division) in a preservation of evidence case, was too low, and raised the amount to DKK 60.000. The Danish Supreme Court highlighted that reasonable and proportionate legal costs incurred by the successful party shall be borne by the unsuccessful party in accordance with article 14 of the Enforcement Directive.
The Court’s decision can be read in Danish here.
Market practice law
New EUIPO and EUROPOL assessment shows that the sale of counterfeit products in the EU is rapidly increasing
The assessment shows that the sale of counterfeit and pirated goods now represents just under 6 % of all products entering the EU. The increase has been intensified under the COVID-19 pandemic, where online sales have risen rapidly.
Only a week prior to the release of the assessment, a joint report from the OECD and EUIPO concluded that the amount of dangerous fakes, such as cosmetics and pharmaceuticals, is also on the rise.
The EUIPO and EUROPOL assessment can be read here, and the OECD and EUIPO joint report can be read here.
IT law
The European Council and the European Parliament have reached an agreement on the Digital Markets Act
The EU will soon introduce new regulation to ensure fair competetion and increase choices for internetusers. The Digital Markets Act will blacklist certain practices by large platforms, so called “gatekeepers”, to combat unfair business practices and anti-competitive behaviour. The European Commission will be given authority to conduct market investigations and sanction behaviour that is non compliant with the regulation.
The European Parliament’s statement on the matter can be read here.