ECTA Bulletin June 2017

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1 ECTA Bulletin June 2017

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3 CONTENT 1. INTRODUCTION. Welcome to Budapest! 4 2. EDITORIAL BOARD 5 3. ECTA News 6 4. ECTA Committee Section 9 5. ECTA INFORMATION F. Peter Müller, immediate past President of ECTA has been engaged by the EUIPO as Special Advisor ECTA ANNUAL CONFERENCE Connected by love Buda and Pest: Budapest - as we like it ECTA New Members INTERVIEWS: IP Legend interview Max Oker-Blom 19 Cécile Samalens 22 Anna Ostanina ARTICLE The moon boot Is a copyright icon CASES: Christian Lacroix and company Christian Lacroix or how losing its renown and being filed fraudulently: a not-lifelong but not-ended trade marks story The Kitkat decision: the difficulty of proving acquired distinctiveness through use 28 Swedish Supreme Court in landmark decision concerning damages awarded after annulment of interlocutory injunction (Bringwell vs Cederroth,T 230/15) UK Scottish Court of Session blows final whistle on THE TARTAN ARMY 32 Cancelation trade mark action rejected for non-fulfillment of the cumulative conditions on bad-faith as established by EJC 11. GossIP ECTA Bulletin I 3

4 1. Introduction Dear colleagues and friends, Welcome to Budapest! ECTA is holding its 36th Annual Conference in Budapest, Hungary. The title of the 2017 conference is inspired by the lovely bridges of the city of Budapest which connect the two parts of the city Buda and Pest. Since bridges always connect two sides, we made a nice symbol for you: trade marks as bridges connecting people. Trade marks reflect emotions and they surround everyday life. We are all fortunate to have a profession dealing with trade marks which reflect and symbolize human attitude. Maybe this is also one of the reasons why we love our profession. As you can see from the professional programme, the theme of the conference includes presentations about these different connections. A trade mark is a bridge between the consumer and the producer. It is always the brand-name in which the quality of the product is realized and the brand-name is also intended to reflect the positive feelings we have towards a product. The workshop will cover the topics of trade marks and languages which is an important bridge in our profession. We will have a panel on the psychology and mar- keting of brands: how we are building bridges with other disciplines. We organized a parallel session on mediation and arbitration: these excellent tools are bridges between two disputing parties. We have also built other bridges in the programme: a bridge between the past and the future, presenting the first year of the EU Trade Mark Reform; exciting bridges ahead about new technologies and IP rights; a complex bridge about designs - trade marks - copyright; virtual bridges about the EU Copyright Reform and the Digital Single Market Strategy; a bridge blown-up about the legal consequences of Brexit. Finally, as a foundation of the bridge: is a review of the most important EUCJ trade mark cases in a special interview-format, and stairs like a bridge from bottom to top with a complex presentation of the decisions of the year. A bridge which connects old Europe with new Europe is also the symbol of the European unity this year. People of one important Member State of the European Union made a decision to leave the European Union. Thus, this and the following years will bring many changes in Europe. ECTA as a European focussed organization will closely follow these changes and is proud to be recognized as a significant partner advising the European Commission on this. Although this is a very important task, it is not the only one and there are many other important projects ECTA is running this year. Different sections of this Bulletin will highlight the most important projects of the ECTA Committees as well as the most important meetings with many officials ECTA has held this year. You will also have a chance to read some interesting articles prepared by ECTA members and an overview of the most interesting case law. I would like to cordially thank each ECTA Committee member, but I would especially like to thank the great team of ECTA Committee Chairs, members of Management Committee Sozos-Christos Theodoulou, Anette Rasmussen, Max Oker-Blom and László Bérczes and the ECTA Secretariat in Brussels for their constant support, knowledge and excellent work dedicated to the fulfilment of ECTAs goals set in the six-year Strategic Plan. I wish you pleasant reading and a most marvellous conference in Budapest! Ruta Olmane ECTA President 4 I ECTA Bulletin

5 2. Editorial Board PREPARED BY ECTA PUBLICATIONS COMMITTEE CASE LAW ARTICLES Chair Hande Hançer GÜN & PARTNERS Vice Chair Craig A. Bailey Corsearch Europe Wolters Kluwer Corporate Legal Services Secretary Alessandro Massetti AKRAN Peter Spies DINEFF TRADEMARK LAW LIMITED INTERVIEWS; GossIP Christian Bolduc Smart & Biggar/Fetherstonhaugh Craig A. Bailey Corsearch Europe Wolters Kluwer Corporate Legal Services ECTA MANAGER LEGAL AFFAIRS Anna Ostanina ECTA LEGAL COMMUNICATOR Daniela Derksen ECTA Bulletin I 5

6 3. ECTA News Since the last ECTA Annual Conference, ECTA has been involved in a large number of activities: ECTA WORKSHOPS AND ROUND TABLES The EU Trade Mark Reform and Its Implementation-ECTA/ EUIPO workshop and the IP Implications of the Brexit Workshop On 14 September 2016, ECTA, together with EUIPO, held a workshop on the EU Trade Mark Reform whcih was followed by an ECTA workshop on IP Implications of the Brexit. The workshop was held in the EUIPO Brussels Liaison office. Recent Case Law on Trade Marks and Designs and a taste on the protection of Wines On 21 October 2016, ECTA held a round table in Bordeaux, entitled Recent Case Law on Trade Marks and Designs and a taste on the Protection of Wines. During this event Georgios Gryllos, Legal Secretary, General Court Chambers of Judge D. Gratsias, spoke about the recent case-law of the European Court of Justice and the General Court in trade mark cases. Furthermore, Jean-Baptiste Thial de Bordenave, Lawyer at Inlex Bordeaux Office, addressed IP issues regarding Wine, and its Traditional Mentions. The round table is available as a webinar on our website under the section PUBLI- CATIONS WEBINARS. ECTA workshop in Riga On 8 December 2016, ECTA held a workshop addressing the TM Directive general overview and the Brexit implications on trade marks. The first part of the workshop was divided into two sessions: (i) Overview of the major elements of that new instrument in terms of substantive and procedural law, which was presented by Tomas Eichenberg, Principal Administrator of Unit F5 Intellectual Property and Fight against Counterfeiting, European Commission, BE. 6 I ECTA Bulletin

7 3. ECTA News (ii) Changes Foreseen by Implementation of TM Directive in Baltic States, which was welcomed by Ruta Olmane, ECTA President, METI- DA law firm, LV. The following speakers spoke about the changes foreseen in their respective countries in connection with the implementation of the TM Directive: Latvia - Jānis Ancītis, Counsellor, Department of Trademarks and Industrial Designs, Patent Office of the Republic of Latvia, LV Lithuania - Lina Mickienė, Deputy Director of the State Patent Bureau of the Republic of Lithuania, LT Estonia - Riina Pärn, ECTA Council Member, Estonian & European Trade Mark Attorney, Lawyer, INTELS Estonia, Patent and Trademark Agency, EE The second part of the workshop discussed the IP implications of the Brexit, and was presented by Philip Harris, CITMA Council Member, Barrister, St Philips Stone Chambers, UK. The workshop is available as a webinar on our website under the section PUBLI- CATIONS WEBINARS. ECTA - Workshop - The operation of the EU law on the detention of counterfeit goods in transit Update on the EU Trade Mark Implementing package On 8 March 2017, ECTA held a workshop on the operation of the EU law on the detention of counterfeit goods in transit - Update on the EU Trade Mark Implementing Package. The workshop was held in Brussels at the NH Collection Brussels Grand Sablon Hotel. In the first part of the workshop, Tomas Lorenzo Eichenberg, Principal Administrator of Unit F5/ Intellectual Property and Fight against Counterfeiting, updated the attendees on the EU Trade Mark Implementing Package. In the second part, goods in transit were discussed from the perspective of the industry and of the European Observatory on Infringements of IP rights. At the end, practitioners talked about the liability of right holders following discon-tinuance of a procedure for detention of goods as well as the operation of the new provisions with reference to EC Notice On the customs enforcement of IPR concerning goods brought into the customs territory of the Union without being released for free circulation in-cluding goods in transit (July 2016). The workshop is available as a webinar on our website under the section PUBLI- CATIONS WEBINARS. ECTA - Round Table - Hot Design Topics On 30 March 2017, ECTA held a round table on Hot design topics, in Alicante in the Brussels Conference room at EUIPO. The first panel discussed functional designs, the multiplicity of forms or technical features approach. The second panel discussed the nature of the product and the relevance to the individual character assessment. The round table was moderated by Tobias Dolde, Chair of the EUIPO Link Committee and had some fantastic speakers including Christoph Bartos, Member of the Boards of Appeal, EUI- PO, Stephan Hanne, Member of the International Cooperation and Legal Affairs Department, EUIPO, Peter Schramm, Co-Chair of the ECTA Design Committee and Sergio Rizzo, Member of the ECTA Design Committee. The round table was followed by an interesting debate and exchange of views on the most controversial design issues and it ended with a networking reception Since March 2015, ECTA made several workshops available online. Please check This way, members (and non-members) can view the workshops ECTA has held over the years, in the comfort of their own home. ECTA POSITION PAPERS AND COMMENTS On 2 September 2016, ECTA sent comments to EUIPO Consultation on the Draft Guidelines of the Work Package. ECTA would like to thank all Committee members who have contributed to the comments. On 30 September 2016, ECTA sent comments to WIPO regarding the draft WIPO Examination Guidelines concerning the classification of goods and services in International applications. In November 2016, ECTA has sent the following position papers: Comments regarding the Draft of the Commission Delegated Regulation supplementing Council Regulation (EC) No 207/2009 on the European Union trade mark repealing Commission Regulations (EC) No 2868/95 and EC No 216/96; ECTA s feedback for the 19th EU-China IP Working Group; Position paper on Opposability of collective marks identifying Geographical Indications; Comments regarding the draft Commission Implementing Regulation laying down detailed rules for implementing certain provisions of Council Regulation (EC) No 207/2009 on the European Union trade mark; Position Paper on Rim Designs and the repair clause ; In January 2017, ECTA has sent the following position papers: Position Paper concerning the Brexit and Implications on registered EU wide IP rights; Position Papers relating to the issue of cross-border portability and the proposed reform of the Cable and Satellite Directive; ECTA comments on SCT/35/4: Protection of Country Names Against Registration and Use as Trade Marks ; Completed ECP4 Convergence Analysis Project Questionnaires on Trade Marks and Designs Topics. MEETINGS AND EVENTS ATTENDED BY ECTA EUIPO Observatory Working Group, was attended by Carina Gommers, member of the Anti-Counterfeiting Committee, Olivier Vrins, Vice-Chair of the Anti - Counterfeiting Committee, and, Annick Mottet, former ECTA president and member of the Anti-Counterfeiting Committee, from 29 November to 2 December INTA Digital World Conference, was attended by Max Oker-Blom, ECTA Secretary General, on 1-2 December ASIPI XIX Work Sessions and Administrative Council, Buenos Aires, Argentina, was attended ECTA Bulletin I 7

8 3. ECTA News by Jordi Guell, member of the Anti-Counterfeiting Committee, on 4-7 December th China IP Annual Forum, was attended by Dorothy Hu, Ferrante Intellectual Property, on January In cooperation with China IP Magazine, ECTA received a booth at the conference, in which Dorothy Hu kindly introduced ECTA to the attendees. Global Illicit Trade Summit, Brussels, was attended on 21 February 2017, by Anna Ostanina, ECTA Manager Legal Affairs, Daniela Derksen, ECTA Legal Communicator, and Joe Cohen, Chair of the Anti-Counterfeiting Committee, who was also a speaker at the panel section called Defending your brand- The case for Private sector involvement, in which he spoke about illicit goods in transit. 12th LM on Cooperation, Alicante, was attended on 1-3 March 2017, by Cristina Bercial, Chair of the ECTA Law Committee. The European Conference 2017 at Harvard University, Cambridge, Massachusetts, was attended on 3 and 4 March 2017, by Benjamin Fontaine, Chair of the ECTA Geographical Indications Committee, who was a speaker at this conference on behalf of ECTA. European Sister Organisations 2017 Annual Meeting, Paris, was attended on 23 and 24 March 2017, by Anna Ostanina, ECTA Manager Legal Affairs and Max Oker-Blom, ECTA Secretary General. ECP Working Group Meetings, Alicante, was attended on 30 March by Eva-Maria Strobel, member of the ECTA Design Committee. ECTA Bilateral meeting with EUIPO, Alicante, 31 March 2017, ECTA delegation met with António Campinos, Executive Director of the EUIPO and other EUIPO representatives. The meeting was attended by Ruta Olmane, ECTA President; Tobias Dolde, Chair of the ECTA EUIPO - Link Committee; Anna Ostanina, ECTA Manager Legal Affairs; Benjamin Fontaine, Chair of the ECTA Geographical Indications Committee; Christina Bercial Chaumier, Chair of the ECTA Law Committee; Fabio Angelini, Vice Chair of the ECTA Copyright Committee; Sergio Rizzo, Member of the ECTA Design Committee; Manuel Minguez, Member of the ECTA Professional Affairs Committee; Tamás Kocsis, Member of the ECTA Law Committee, and Peter Schramm, Co-Chair of the Design Committee. During the meeting, ECTA received feedback from EUIPO representatives related to EUIPO practices, developments in IP law and feedback on ECTA s recent position papers. Working Group for the Preparation of Common Regulations under the Lisbon Agreement, WIPO, Geneva, was attended on 4-5 April by Cecilia Falconi Pérez, member of the ECTA WIPO-Link Committee and of the Geographical Indications Committee; ECTA WIPO Bilateral Meeting, Geneva, 6 April 2017, ECTA WIPO Link Committee s biggest project was the preparation for and participation at the WIPO-ECTA annual bilateral meeting which took place at the WIPO s headquarters on 6 April A delegation of 8 ECTA colleagues travelled to WIPO to meet with the Director General Mr. Francis Gurry and the heads of sections and many other WIPO colleagues. ECTA was represented by Ruta Olmane the President of ECTA; Judit Lantos the Chair of the WIPO-Link Committee; Anna Ostanina Manager Legal Affairs; Ignacio Elzaburu WIPO Link and Law Committee Member; Mara Modolfo Vice-Chair of ECTA Harmonization Committee and WIPO-Link Committee Member; Bernard Volken Chair of the Design Committee; Cecilia Falconi Pérez WIPO Link Committee and Geographical Indications Committee member and Franc Enghardt WIPO Link Committee and Professional Affairs Committee Member. Before the meeting, ECTA reached out to several legal committees and compiled the discussion points. WIPO colleagues gave a very detailed update on their activities with many interesting presentations and figures, and provided answers to many of ECTA questions. An important point was inviting WIPO to take an active part in the upcoming Autumn Council Meeting which will take place in Geneva on October, Regional Enforcement Seminar by EUIPO, Cyprus, 4-6 April 2017, was attended by Sozos-Christos Theodoulou, ECTA First Vice-President, who spoke at this seminar about goods in transit. EUIPO 17th LM on Trade Marks, was attended on 25 and 26 April 2017 by Tobias Dolde, Chair of the ECTA EUIPO-Link Committee. The Anti-Scam Network Meeting was attended on 28 February 2017, by Manolo Mínguez, member of the Professional Affairs Committee attended the event on behalf of ECTA. Conference on IPR Enforcement in Malta, was held in Malta on 2 March The conference was organized by the Maltese Customs, Malta EU Presidency and the European Observatory on Infringements of Intellectual Property Rights. Luigi Sansone, Member of the ECTA Professional Affairs Committee, and Francesca Warrington, Member of the ECTA Harmonization Committee, were speakers at this conference on behalf of ECTA. They spoke about goods in transit from the Maltese and the EU perspective. ECTA Meetings with EU Officials On 9 March 2017, the ECTA delegation composed of the members of the ECTA Management Committee, namely Ruta Olmane, ECTA President, Sozos-Christos Theodoulou, ECTA First Vice President, Anette Rasmussen, ECTA Second Vice President, Max Oker-Blom, ECTA Secretary General and Anna Ostanina, ECTA Manager Legal Affairs met with several EU authorities. They met with (i) DG Growth, (ii) DG Connect, (iii) DG Taxud, (iv) DG Trade, (v) Permanent representation of UK to the EU, and, (vi) Permanent representation of Estonia to the EU. Christian Freudenberg, Chair of ECTA Copyright Committee, also attended the DG Connect meeting and Joe Cohen, Chair of ECTA Anti-Counterfeiting Committee, participated in the DG Taxud and the Permanent representation of UK meeting. Observatory Working Group Meetings, Alicante, Spain, have been attended on 3-5 May 2017 by: Sergio Rizzo, Member of the ECTA EUIPO - Link Committee and of the ECTA Design Committee; Olivier Vrins, Vice Chair of the ECTA Anti-Counterfeiting Committee; Sarka Petivlasova, Member of the ECTA Law Committee; Daniela Derksen, ECTA Legal Communicator. You may find detailed information on the ECTA website and may follow the developments via the ECTA Newsletter. 8 I ECTA Bulletin

9 4. ECTA Committee Section 1. ANTI-COUNTERFEITING COMMITTEE (ACC) The Anti-Counterfeiting Committee has been involved in the following projects since October EU Observatory Working Groups From 29 November to 2 December 2016, various members of the Anti-Counterfeiting Committee attended the EU Observatory Working Group meetings in Milan, Italy. Annick Mottet Haugaard attended the Enforcement WG meeting, Carina Gommers attended the Common Session and the IP in the Digital World WG meetings and Olivier Vrins attended the Legal & International WG meeting. Each of them prepared detailed reports. In addition, the IP in the Digital World WG meeting, the Legal & International WG meeting and the Common Session from 3 May to 5 May 2017 in Alicante, Spain, were attended by Olivier Vrins. Global Illicit Trade Summit On 21 February 2017, The Economist organized the Global Illicit Trade Summit in Brussels. Joe Cohen, Chair of the Anti-Counterfeiting Committee was together with Paul Maier Director of the EU Observatory and others, a panelist during this event. The panel discussed Defending your brand the case for private sector involvement. ECTA Workshop On 8 March 2017, ECTA ran a Workshop in Brussels, dealing with two topics: Update on the EU Trade Mark Implementing Package. The Operation of the EU Law on the Detention of Counterfeit Goods in Transit. Some 40 people attended and were welcomed by Ruta Olmane, ECTA President. ACC Chair, Joe Cohen, moderated the Workshop and ACC Vice-Chair, Olivier Vrins, was one of the speakers. The workshop started with an update by Tomás Eichenberg, of DG Growth, on the progress which had been made with the Trade Mark Implementing Package. He reported that the complex reform of the law was nearing completion. It is anticipated that the Codified EU Trade Mark Regulation will be applicable as from 1 October 2017, together with the new secondary legislation. The topic dealing with the detention of counterfeit goods in transit was timely, as the new law had been in force for almost 1 year. Joeri Mombers, Senior IP Council of Philips Lighting, gave the perspective from Industry on goods in transit and Fernando Martinez Tejedor of the EU Observatory on Infringements of IP Rights, EUIPO, presented the Observatory s view on counterfeit goods in transit. That was followed by speakers on two specific topics relating to goods in transit. The first ECTA Bulletin I 9

10 4. ECTA Committee Section was Floriane Codeville, of Casalonga Advocats, Paris, who spoke on the potential liability of rights holders for damages following the discontinuance of a procedure for detention of goods. Floriane discussed an ongoing case in France about liability under Art.28 of the Customs Reg. 608/2013. Olivier Vrins, of Altius, Brussels, then spoke on the operation of the EC Guidelines of 5 July 2016 with regard to goods in transit through the EU. Olivier s presentation included issues arising regarding the scope of the right holder s trade mark protection in the country of final destination, the onus of proof placed on the owner or the goods and the possibility for Customs, before detaining the shipment, to request any information about the goods. Max Oker-Blom, ECTA Secretary General, then closed the Workshop. There was lively discussion throughout the Workshop, which was livestreamed and is available to view on the ECTA website. Meeting with DG TAXUD On 9 March 2017, Joe Cohen was part of the delegation together with the ECTA Management Committee at a meeting, in Brussels, with representatives of DG TAXUD. The DG TAXUD representatives answered a series of pre-prepared questions and confirmed an important point: it is not obligatory for rights holders to provide Customs authorities with details of all their registered trade marks in all countries, but it does help to provide Customs with as much information as possible. By Joe Cohen (Committee Chair) 2. COPYRIGHT COMMITTEE The Copyright Committee has been involved in the following projects since the beginning of On January 20, 2017, ECTA has sent two position papers prepared by the respective project groups of the Copyright Committee to the European Commission (DG Connect). The papers relate to the issue of cross-border portability and the proposed reform of the Cable and Satellite Directive. With regard to the Cable and Satellite Directive, ECTA has called upon the European Commission to consider a second round of public consultations on the possible extension of the principles of the Directive in the near future and before any legislative proposals are put forth, so that the rights and legitimate interests of all stakeholders, i.e. broadcasters, service providers, rights holders and consumers could be fully taken into account and a balanced solution is achieved. With regard to the draft Regulation on ensuring cross-border portability of online content services in the EU (COM (2015) 627), ECTA has recommended to clarify various definitions and pointed out that the proposal has to be modified with regard to personal data protection issues. By sending these first copyright related position papers to the European Commission, ECTA was successful in establishing a relationship with the relevant people at DG Connect being in charge of the EU copyright reform. A first meeting with Mrs Agata Gerba (team leader Copyright Unit) and Mr Jaime De Mendoza Fernandez (legal officer Copyright Unit) took place on 9 March, 2017, in Brussels, which was a good opportunity to present ECTA s Copyright Committee activities and to learn more about the Commission s working schedule for the actual copyright reform project. ECTA was represented by the Management, namely Ruta Olmane, ECTA President, Sozos-Christos Theodoulou, ECTA First Vice President, Anette Rasmussen, ECTA Second Vice President, Max Oker-Blom, ECTA Secretary General and Anna Ostanina, ECTA Manager Legal Affairs and by Christian Freudenberg, Copyright Committee Chair. ECTA will continue to provide input and papers to DG Connect on copyright related topics. After delivering these first position papers, the Committee is now focusing on other projects and draft position papers will be discussed in the next Committee Meeting in Budapest on 28 June By Christian Freudenberg (Committee Chair) 3. GEOGRAPHICAL INDICATIONS COMMITTEE The Geographical Indications Committee has been involved in the following events and developments, over the last trimester: Cecila Falconi Pérez, member of the ECTA Geographical Indications Committee, represented ECTA during the Working Group for the Preparation of Common Regulations under the Lisbon Agreement, held at WIPO in Geneva, on 4-5 April Benjamin Fontaine represented ECTA during a conference organized early in March by various universities in Harvard, Massachusetts (European Conference 2017 at Harvard University). Benjamin Fontaine intervened in a panel on European Food quality policy. This was an excellent opportunity to discuss the relevance of the European scheme on geographical indications, in a country where some skepticism exists on this issue. Geographical Indications Committee is also following and reviewing the current legislative initiatives on the revision of the spirits regulation (with its scheme of geographical indications) and on the adoption of a system of protection of geographical indications for hand crafted goods. Finally, Geographical Indications Committee is preparing with enthusiasm its next meeting in Budapest, with the research and sharing of relevant case law in our field of interest. By Benjamin Fontaine (Committee Chair) 4. HARMONIZATION COMMITTEE The Harmonization Committee is working on the following projects: Brexit The task force of the Harmonization Committee is constantly following up the Brexit process and commenting on possible implications on harmonization issues. Implementation of the Recast Trademark Directive Committee Members have been invited to monitor the particularities of the national laws in connection with the future implementation of the TM Directive. Possible issues are being identified with a view to preparing appropriate questionnaires and respective projects. Systems for supporting SMEs in protecting their IP The EUIPO is currently investigating the possibility of creating a scheme, such as the IP Pro Bono initiative for small businesses that find themselves involved in an IP dispute and cannot afford it. As ECTA was approached by the EUIPO to advise whether systems like this also exist in other EU Member States, the Harmonization Committee checked the existence and the particu- 10 I ECTA Bulletin

11 4. ECTA Committee Section larities of such schemes. The check indicated that there are comparable initiatives in other countries although they seem to differ significantly regarding the stakeholders involved and the coverage of the services. Filing of new applications after start of use requirement The Committee is working on a project on filing a new trade mark application if a previous one has become subject of use requirement. This study refers to abuse of requirement provisions. Status of a mark The Harmonization Committee has concluded a work on a survey on symbols attesting to the status of a mark such as or TM. Convergence Programme A survey on the Convergence Programme is being finalized. By Carolin Kind (Committee Chair) 5. LAW COMMITTEE The Law Committee has been involved in the following projects since February Legislative Package The Law Committee is closely following the amendments introduced by the legal reform and will provide comments on the Draft Implementing Regulation and Draft Delegated Regulation as soon as the texts are released. EUIPO Matters ECTA - EUIPO bilateral meeting 31 March 2017 The Law Committee was represented by Tamas Kocsis and Cristina Bercial-Chaumier at the ECTA - EUIPO bilateral meeting which was held at the EUIPO s premises on 31 March The meeting was very successful and a discussion session based on the topics proposed by ECTA was held. A workshop on the ECP4 (European Cooperation Projects) and on future Convergence Projects CP8 and CP9 was presented by Simon White. Revision of Guidelines We were informed by the EUIPO that the draft Guidelines will become available for comments in May. The Law Committee will provide with comments jointly with the rest of the Committees as usual. Brexit ECTA was contacted by a representative of a Task Force for the Preparation and Conduct of the Negotiations with the UK under Article 50 TFEU (TF50), informing ECTA that its submission regarding the Brexit received their fullest attention. It was agreed with TF50 that ECTA with the main stakeholders would have a working meeting with TF50 in Brussels. The meeting will primarily concern trade marks and designs and ECTA will take the lead in organizing it and will invite other stakeholders to take part in such meeting with TF50. In order to prepare such meeting, the Law Committee as well as the rest of the Committees pre- ECTA Bulletin I 11

12 4. ECTA Committee Section pared a paper at the beginning of April, pointing out the important points/hot topics for IP rights and commenting on the most relevant solutions. By Cristina Bercial-Chaumier (Committee Chair) 6. PROFESSIONAL AFFAIRS COMMITTEE (PAC) In the past few months the PAC has looked into several issues that could shape the future of trademark professionals. The PAC has among others reviewed a Proposal for EU Directive On a proportionality test before adoption of new regulation of professions and also the Communication On reform recommendations for regulation in professional services. Furthermore, the PAC has continued to examine the question of misleading invoices addressed to EUTM owners and has participated in the meeting of the Anti-Fraud Network of the EUIPO. In addition, the PAC has been glad to receive an increased number of papers to the ECTA Award, both in the professional and student categories. The papers are currently being evaluated by the PAC s Scientific Committee. The PAC has also launched a new task that is exploring the issues concerning and the status of e-filing before IP offices of various EU Member States. By Péter Lukácsi (Committee Chair) 7. WIPO-LINK COMMITTEE WIPO-Link Committee has prepared a paper in collaboration with the Harmonization and Law Committees in the area of Protection of Country Names. The Committee received a number of comments from Council members and the Paper has been finalized and sent to WIPO accordingly. WIPO-Link Committee has commented on the draft Classification Guidelines Concerning the Classification of Goods and Services in International Applications prepared by the International Bureau during the fall of Many of our comments were taken into account, as can be seen in the final Examination Guidelines published by WIPO on 30 March ECTA was represented by Cecilia Falconi Pérez at the Working Group for the Preparation of the Common Regulations under the Lisbon Agreement and the Geneva Act of the Lisbon Agreement, which took place in Geneva between 3 and 5 April As a result of ECTA s continued cooperation with the heads of sections of WIPO, WIPO kindly offered top-level speakers for the Annual ECTA Conference in Budapest. Grégoire Bisson, Director of The Hague Registry will give an update on the Hague and Madrid systems, and Michele J. Woods, Director of the Copyright Law Division, Culture and Creative Industries Sector will speak about WIPO Copyright News, both at the session Latest IP News and Trends. Sara Amini, Project Coordination Officer of the Madrid Registry Support Division will give a presentation on WIPO s Madrid tools and statistics in the framework of the Wednesday Workshop. The Committee s biggest project was the preparation for and participation at the ECTA-WIPO annual bilateral meeting which took place at WIPO s headquarters on 6 April A delegation of 8 ECTA colleagues travelled to WIPO to meet Director General Mr. Francis Gurry, WIPO s heads of sections and many other WIPO colleagues. ECTA was represented by Ruta Olmane, President of ECTA; Judit Lantos, Chair of the WIPO-Link Committee; Anna Ostanina, Manager Legal Affairs; Ignacio Elzaburu, WIPO Link and Law Committee Member; Mara Modolfo, Vice-Chair of ECTA Harmonization Committee and WIPO-Link Committee Member; Bernard Volken, Co-Chair of the Design Committee; Cecilia Falconi Pérez, WIPO Link Committee and Geographical Indications Committee Member and Franc Enghardt, WIPO Link Committee and Professional Affairs Committee Member. Before the meeting, we reached out to several ECTA Committees and compiled discussion points. WIPO colleagues gave a very detailed update on their activities with many interesting presentations and figures, and at the same time we received answers to many of our questions. An important point was inviting WIPO to take an active part in the upcoming ECTA Autumn Council Meeting which will take place in Geneva on October Finally, WIPO-Link member Claire Lazenby will take part at the Madrid Working Group and Roundtable Meeting between June 2017 which will have taken place by the time of the publication of this Bulletin. By Judit Lantos (Committee Chair) 12 I ECTA Bulletin

13 4. ECTA Committee Section 8. INTERNET COMMITTEE The Internet Committee is working on the following projects since June 2016: During the autumn meeting in Bordeaux, France, in October 2016, Ms. Vicky Folens, from Trade Mark Clearing House (TMCH) delivered a speech to the members of the Internet Committee about the TCMH and recent developments relating thereto. Ms. Folens introduced the TMCH role and purposes. She explained why the TMCH verifies the information about the registration of trade marks and discussed the mechanism for registration and notification. Ms. Folens described the evolution of the TMCH services, including the ongoing notifications, BrandPlus, and LockList. Finally, she provided some more information on the advantages of the TMCH. The Status of the IP Address (is it a personal data?) survey was extended during the meeting in Bordeaux considering the new European Court of Justice Case Number C-582/14 (In re Patrick Breyer vs. Bundesrepublik Deutschland) involving to the use of personal data related to a dynamic IP addresses. The survey on Archive.com continues. During the meeting in Bordeaux, it was reported a Board of Appeal of the EPO case NumberT 0286/10 (Sécurisation d un accès à une ressource numérique/bouygues) stating that Archive.org published picture of a web site has a presumption of authenticity and the burden to prove the picture is inaccurate is on the claimant. Nevertheless, the views of domestic courts, particularly in France, do not concur with the view of the EPO. The report on this survey will also include technical explanations on how Archive.com works, mainly due to the fact that, in some countries, France for example, it has been stated that, Archive.com is not technically reliable per se. Also the surveys on Liability of domain name s administrative and technical contact and Whois and privacy continue. Both surveys were circulated among the members. The first survey is aimed at evaluating possible case-law in the different jurisdictions, while the second one is aimed to identify the respective available disclosure procedures of the Registries in charge of the European cctlds. The project on the Technical ways to identify cyber squatters and/or counterfeiters, for example by using Google overview, Geo location tools and other systems that can contribute to locate and identify a squatter was launched. This is a work in progress, the members being encouraged to update and provide additional information about sources for investigation and platforms that can be investigated for online infringements. Since the meeting in Dubrovnik, the UK has decided to leave the EU. The Internet Committee discussed the possibility for the UK entities/persons to be able to continue registering domain names and using.eu TLD as well as what might happen with the already registered.eu domain names by UK entities/persons after Brexit. In Bordeaux, the Internet Committee also discussed about the implications of Brexit on General Data Protection Regulation 2016/679. A new project on the new.eu Regulation was proposed in Bordeaux. The.eu Regulation will be updated within the next few years. Also, the National ADR.cc project will be updated. New projects are envisaged to be introduced in Budapest. ECTA Bulletin I 13

14 5. ECTA Information F. Peter Müller, immediate past President of ECTA has been engaged by the EUIPO as Special Advisor F. Peter Müller, Managing Partner of the Munich office of Müller Schupfner & Partner has been engaged by the EUIPO (European Union Intellectual Property Office) as Special Advisor under the conditions of employment of other services of the European Union. As such, Mr. Müller will become a member of the European Cooperation External Advisery Board (ECEAB) and member of the European Trade Mark and Design Education Centre (ETMD Ed Centre) Steering Committee. As immediate past President of ECTA (European Communities Trade Mark Association, Brussels, Belgium) and former member of the Board of Directors of INTA (International Trademark Association, New York, USA), Mr. Müller will have the privilege to advise the Executive Director of the EUIPO and the Management Board on the way forward for the implementation of the projects from the perspective of the stakeholders and to advise on and advocate the benefits of the European Cooperation projects. He will also be involved in the Steering Committee of the ETMD Ed Centre project during the strategic implementation phase in order to advise the project team in the design and set up of the curriculum. 14 I ECTA Bulletin

15 ECTA Bulletin I 15

16 6. ECTA Annual Conference Connected by love Buda and Pest: Budapest - as we like it Judit Lantos and Katalin Szamosi are local organizers of the ECTA 36 th Annual Conference. They are bound to Budapest through their families and their jobs so in this article they confess about what is close to their heart. As you surely know, Buda and Pest are connected by bridges linking the people not only physically, but also culturally and historically.that is why the BRIDGE symbol has been chosen as title and logo of the Conference. The Conference takes place in the Pest side which can be a starting point for excellent walks. It takes only a second to see and fall in love with Budapest, but even weeks or months are not enough to know its every detail, cultural and historical background. The streets behind the ECTA conference hotels were the very heart of the old capital. The small houses and squares reflect the taste of the urban citizens. Near the Pest end of the Chain Bridge, is the imposing building of the Hungarian Academy of Sciences which has hosted the greatest brains of the country since 1825 up to now. The development of the Pest side started in the beginning of the 19 th century. The first permanent link between the two parts of the city was the Chain Bridge, remaining an icon of Budapest since its opening in This bridge made it possible to officially merge Buda and Pest in Walking along the river Danube while admiring the beautiful palaces you reach the most wellknown Budapest landmark, the Parliament, a magnificent building of Neo-Gothic architecture. Tours are available when the National Assembly is not in session. Only a short walk from Parliament is the largest church of Budapest. St. Stephen s Basilica is named in honour of the first king of Hungary and built in Neo-Classical style. Visiting the dome s observation deck you can enjoy a beautiful 360 o panoramic view of the city. Strolling back to your hotel don t miss to visit the Neolog Synagogue in Dohány Street, which is the largest Synagogue in Europe and the second largest in the world. Those who love animals can spend wonderful time in the Zoo Budapest situated in the City Park (Városliget) near the Heroes Square. Also in the City Park is the Széchenyi Bath famous not only for its healing water, but also for its unique architecture. Pest by night has been admired by Edward, the Prince of Wales and Ms. Simpson who visited the famous locals and bars of the 30 s. 29 theatres, 2 Opera Houses, 1 Theatre of the Operetta, 1 Musical Theatre and 3 Concert Halls offer a broad variety of programs for each night. Reported by Judit Lantos Chair of WIPO-Link Committee, Partner at Sár & Partners Attorneys at Law-Danubia Patent & Law Office, HU 16 I ECTA Bulletin

17 6. ECTA Annual Conference Reported by dr. Szamosi Katalin Attorney at SBGK Attorneys Those who love culture will find lots of restaurants and cafés after a concert or theatre night out. The city has excellent restaurants and wine bars not only for the young, but the young at heart. You should enjoy a breathtaking view of the Budapest roofs at one of the roof top bars called 360 Bar on Andrássy Boulevard or of the Aria Hotel. Don t miss to get lost in one of the Ruin Pubs for which yearly millions of tourists visit Budapest. We are organizing an afterparty on Thursday evening to show you one of them. Budapest is a safe city. Transport is comfortable and served by buses, trams and (not to be missed) the Millennium Underground, the first subway line in mainland Europe. The authentic stations reflect the spirit of the prosperity of Budapest into a metropolis. At Vörösmarty Square, one of the end stops, you can taste the world-famous pastries of the Gerbeaud Café. If you wish to take home some culinary souvenirs you should take a look around the Central Market Hall near the Pest end of the Liberty (Szabadság) Bridge. Even Queen Elisabeth visited the Market Hall in 1993 and bought some Hungarian red pepper (paprika). Let s continue our walk to Buda through the Chain Bridge, arriving at Clark Square. If you look up, you can see the Buda Castle above your head. It is the historical castle of the Hungarian kings. You don t have to walk upstairs since the Castle Hill is linked to the Chain Bridge by the Castle Hill Funicular. You may walk a little bit to the left from the square, entering to the so-called Castle Garden Bazaar, a newly refurbished complex with fantastic terraces. There is an escalator in the Gardens, taking you up to the castle or you may descend by walking down the paths of the Garden. To have a rest, drop by at the restaurant in one of the gardens with a stunning view. In the Castle a must-see is the Fisherman s Bastion from where you can enjoy a breathtaking panorama. Just next to it is the Matthias Church, covered by colored roof tiles manufactured by the famous Zsolnay Works. It often hosts concerts thanks to its splendid acoustics. Continuing your way along the riverside you can see the Gellért Hill. The famous Gellért Bath is at its foot. If you love spas, you should definitely take a swim there. Baths are an integral part of Budapest life serving as places of well-being. Spa culture already flourished under the Turkish occupation. One of the Turkish baths is the Rudas Bath, also lying close to Gellért. As we tried to express in the conference slogan, bridges connect not only the two sides of Budapest, but connect people, just as love. We were born and have always lived in Budapest; therefore, we often have the pleasure of crossing the Danube by driving over the bridges, which is always one of the highlights of the day. Also, when returning home from the airport by the banks of the Danube and especially in the evening, the road takes you along the river where you can admire the beautifully enlightened bridges and the city. This is breath-taking each time. We truly hope you will have a similar experience during the opening reception on the Europa Boat. We wish you an unforgettable time in our city, the Pearl of the Danube or the Paris of the East as often called. Or just simply as we call it: our Beloved Budapest. ECTA Bulletin I 17

18 7. ECTA New Members Finally, here we are in Budapest for the ECTA 36 th Annual Conference. Who knows, probably some of you may remember the words in the lyrics of the group Jethro Tull mentioning this city. Does Along a skin of satin sea. Hot night in Budapest sound familiar? There had to be something of incredible beauty and fascination in Budapest that conquered and inspired singers like the group Jethro Tull. ECTA wishes that the old, but certainly the new members enjoy the Conference and this beautiful city. We know that some of you new members are thrilled to participate to your first ECTA meeting. It is the case of Mr. Herman Blignaut of Spoor & Fisher of Pretoria, South Africa. ECTA is honored to hear from him that he and his firm put a very high emphasis and value on ECTA membership and, even more proudlyto hear that (talking about setting a goal) Mr. Blignaut, as a first time attendee, besides looking forward to meeting with colleagues Spoor & Fisher collaborated with, meeting like-minded people andmaking new acquaintances, he would also like to explore if and how he can contribute to any of the ECTA Committees and /or activities in the most suitable way. The Annual Conference would also be the occasion for him to learn more from ECTA and its workshops; specifically, about trade mark law and practice in Europe and to perhaps better understand cross-jurisdictional expectations and practice, considering the global nature of IP. Prepared by: Irma Spagnulo Italian and European Union Trademark Attorney, Community Design Attorney, It is also our pleasure to introduce Ms. Bilyana Stefanova of Dimitrov, Petrov & Co. Law Firm of Sofia, Bulgaria. Apart from being a valuable professional she is also an ardent football fan: Lavski Sofia, Chelsea and...milan (personally and jokingly I, being a Juventus supporter - cannot agree with the last one but De gustibus non est disputandum! ). Ms. Stefanova, too, has set an important goal for the Annual Conference. As a fresh ECTA member she is eager to contribute to the knowledge-sharing initiatives of the association and to be actively involved in the production of surveys and position papers on challenging IP issues. She will rely on her participation in the Internet Committee to identify trending solutions related to the legal and practical implications of the internet on IP rights. Another personal goal of hers is to expand her professional network, of course, and we would like to thank Ms. Stefanova for her kind words about ECTA. More specifically, she mentioned that her law firm recognizes ECTA as an outstanding forum for knowledge exchange whose members have the ideal opportunity to keep their knowledge up to date with the most recent developments in IP legislation and practice. The access to highly specialized IP information is sincerely valued by her law firm. It relies on the growing network of ECTA members who share the same IP interests and who have been involved in positively influencing and bringing about important changes in the fields of IP in Europe. She also added that in recent years her firm IP practice has become one of the most widely recognized Bulgarian IP practices globally (congratulations!) and they believe that their ECTA membership played a role in it. 18 I ECTA Bulletin

19 8. ECTA Interviews IP Legend interview Max Oker-Blom By F. Peter Müller Managing Partner Müller Schupfner & Partner ECTA Past President guidelines, people and tools. He never put his personality or historical experience, but rather his knowledge, precise analysis of the problem and modest advice in the foreground which not only made him an excellent colleague and friend to work with, but also a highly respected and often-asked IP professional at institutions like the EUIPO, the EU Commission, the European Parliament and the Member States. Describing what he did for ECTA and the EU trade mark law is difficult to put into a short article and the following will fail to include everything that probably should be included. The author, therefore, tries to give a short insight to this extraordinary man by asking questions and commenting and adding to some of his modest answers (in italic): 1. What kind of IP work do you do and what is your background? To me the ECTA role includes, among other things, the understanding that the association is promoting a balanced view on IP development. ECTA is not a lobbying organization, but is striving to take into consideration various viewpoints of industry and practitioners, even consumers, alike. Max Oker-Blom is one of the few ECTA Legends. Before returning to the academic field, where he started his career, he worked for almost two decades as Senior Vice President, legal, at Fazer group, a Nordic food service group of companies. Previous to that, he was a Tax Partner with Price Waterhouse Coopers. He holds a PhD in Economics and a Licentiate degree in Law (LL.Lic.). As President of ECTA between 2004 and 2006 he developed the working environment and management of ECTA and used his knowledge from industry to make ECTA a more effective and prominent association in the European context. With more member states, a larger Council and different EU procedures, Max helped ECTA to evolve and to become a larger, more organized and mature association. Later, as Secretary General of ECTA between 2011 and 2017, he accompanied 4 different Presidents and re-structured the Office of ECTA with new Max Oker-Blom: During the past years I have, as Adjunct Professor, been lecturing at the Hanken School of Economics and the Aalto University in Helsinki. My topics are Law and Economics of IP Rights, i.e. basically trade marks, patents and copyright, and legal theory and methodology. In addition I have been writing about IP issues. I am a lawyer (Finish Law Degree: Master of Law) to my basic training with a licentiate degree in law, but I have also a PhD (econ). My doctoral thesis discusses a law and economics model of argumentation. Before returning to the academic field I worked as chief legal counsel for Oy Karl Fazer Ab, a Nordic group of companies in the food industry, for almost two decades. My responsibilities comprised, among other things, IP Rights, particularly trade marks. ECTA Bulletin I 19

20 8. ECTA Interviews Comment of F. Peter Müller: Max has a profound knowledge of law and economics. After his studies he went to the US for 18 months and, when he came back, he discontinued his academic career since industry seemed more interesting and promising. He worked on his PhD while working at Fazer. His stay in the US triggered the interest in economics and its relationship to law. He worked at Exxon (Esso) and as a tax partner at Price Waterhouse (now: PWC) before joining Fazer. They needed a tax expert with legal education. However, they also got someone with a sense for economics, namely business law, commercial law, company law, competition law and IP law. Here, Max learnt that it is especially helpful and important to take economic arguments into account for evaluating the law and, also, when applying law. Economic arguments are especially helpful in case the law does not give clear guidance. 2. Since you worked in industry in-house what are the benefits of being an ECTA member? Is it worthwhile working in a committee? Max: There are many benefits. Firstly, you enhance your knowledge of IP. Secondly, you stay on top of the latest developments in the field of IP, and thirdly, you learn to work internationally and you get to know IP-professionals from various countries. All aspects which are more than relevant if you are responsible to protect the most valuable assets a consumer-focused company has, i.e. brands. It is certainly worthwhile to work in a committee of which ECTA has several covering a broad range of IP matters. The committee work particularly exposes one to the details of the legal development, including the latest court practice. You are also able to share and compare your national experience with experts from other jurisdictions. Peter: Asked whether this is good for you or your company, Max answered: That is good for both: You make contacts and your company profits from a knowledge-problem solving association. 3. What does the ECTA role involve and what were your priorities as President and, later on, as Secretary General? Max: To me the ECTA role includes, among other things, the understanding that the association is promoting a balanced view on IP development. ECTA is not a lobbying organization, but is striving to take into consideration various viewpoints of industry and practitioners, even consumers, alike. Having realized that ECTA, when I became President in 2004, spent a lot of time on internal development I decided to make an effort together with the Management Committee, the then Legal Coordinator, Sandrine Peters, and the Advisory Committee to look at ECTAs external contact base and its view on the European IP field as a whole. This resulted in a 24-page document called A Position Paper on the Future Development of IPR in Europe, mainly focused on Trade marks and Designs, and ECTA s Position in this respect. It was approved by the Council in Rome in October 2005 and published in January 2006 and disseminated to all ECTA members in March. Peter: Such position paper was later, in 2014, one of the corner stones of the new Strategic Plan which was developed. The position paper focused on the EU IP structure while the strategic plan focuses on enhancing the association and its member benefits. Before 2004, ECTA was too much focused on internal issues while Max turned the head of ECTA towards the outside definitely a good move. Max: My second priority was to focus on making ECTA finances as transparent as possible. I instructed the then Treasurer Norman McLahlan to produce relevant financial information and to develop the reporting as well as budgeting. As Secretary General I have focused on assisting the association to be as efficient and professional as possible. Peter: Typical Max: Always modest. I am sure that neither Annick, nor Domenico, nor me, nor Ruta would have done as they did without the strong support of Max. He was the father of 20 I ECTA Bulletin

21 8. ECTA Interviews the Office and the management committee, not to say the Godfather. He employed new people, created a work flow in the office, evaluated the employees on a regular basis and always had an open ear for everyone. That wasn`t easy to do from Helsinki so he travelled a lot to Brussels. His industry knowledge was very helpful. His credo always was: Keep ECTA guiding principles simple; don t introduce too many rules, only the necessary ones. 4. What are the most important issues for trade mark practitioners in Europe? Max: To achieve and maintain an excellent knowledge of the new Trade Mark Regulation, which came into force last year in March. In addition, one should closely follow the decisions made by the EUCJ and the practice of EUIPO. To be an active member of ECTA is of great help in this respect. Peter: And what about the Directive? Max: The Directive is also important and now ready for national implementation: ECTA must get hooked on the process and the President, Ruta, is well on track! Naturally, you must know your own national legislation in this area as well. However, as indicated earlier, an overall view on the European IP architecture is important because it helps one to render some important strategical advice to one s clients. Peter: Max initiated many workshops and had been moderator and speaker multiple times. His baby has always been the Digital Market and copyrights. Max having this overall view of the IP situation, including other signs, patents and copyrights made him a well-respected visitor at the EU Commission and the JURI Committee of the EP. Last but not least, the new Copyright Committee of ECTA was Max` idea! Peter: Max What about free trade agreements, I remember our many meetings at DG TRADE: Max: Free trade agreements - because of the protectionist sentiment - are not considered important right now, but could become more relevant in the future again; the UK might become a new hub/channel to the US for EU companies. 5. What improvements would you like to see to trade mark protection? Max: For the time being, and considering the extensive work which has been done, starting with the excellent Max Planck Study followed by hard work done both by the Commission and interested parties, ECTA being one of them, we need to be patient and follow the consequences of the reform closely. I think that we, in addition, must keep an eye on the Implementing Regulation not depriving industry of all flexibility despite predictability being important. One should realize that innovation thrives best when there is some space left to blossom. Predictability goes up but breathing space is going down. As a trade mark practitioner and industry representative with possible business in Britain you need, of course, also to acquaint yourself with the consequences of Brexit and follow these developments closely. Peter: What do you think about the new Art. 4 EUTMR? Max: New forms of trade marks are good, we must await how jurisprudence will tackle the new forms and how similarity of trade marks will be handled, such as a word mark and a word appearing in a movie mark. 6. What have been the most interesting/unusual matters you have worked on yourself? Max: To single out one example is difficult because I have very much enjoyed working in the IP field. Most of the cases have been stimulating. Maybe obtaining a registered trade mark right, after extensive work, for the blue color 2002 for the Fazer milk chocolate is one of them. It was, by the way, the first Finnish color trade mark. Another thing, slightly different, was to chair the Finnish Governmental group on implementing the previous trade mark Directive. But as I said, there are many others, not least working with ECTA all these years. Peter: I think working as an ECTA President or Secretary General is a most interesting / unusual matter. Especially when working with people from 28 countries with different cultures and languages. 7. What do you like about working in trade marks? And what other interests do you have outside of work? Max: Without trade marks a company is unable to compete forcefully and successfully in the market. The trade mark must convey the message to the consumer. It is thus not only a legal matter, but also a marketing issue and a financial question. A trade mark, to really be understood, comprises several aspects which all are important, combining law and economics and even psychology and sustainability issues. To understand the world we live in today you need to understand brands. Intellectual Property takes up a large part of my daily life, but I try also to spend time with literature and keeping fit, like in the gym. Peter: Not to forget his family, particularly his two granddaughters, Vivian, 7 years old and Jessica, 4 years old. These are daughters of his son, also a lawyer. His daughter, who works as an economist, closes the circle. Max: I deeply enjoyed working with the people at the ECTA Office, Cathy, Bárbara and Anna, Petra, Daniela and my colleagues from ECTA Council and various management committees. It has also been a great pleasure to work with you, Peter. I am very grateful. Peter: Thank you, Max and rest assured that your presence and membership at ECTA is highly valued and appreciated and that we are looking forward to working with you in the upcoming years. Thank you, Max, for all you did for this association, the thousands of hours you spent on a pro bono basis and how well ECTA flourished under your Leadership! Thank you, Thank you, dear Max. ECTA Bulletin I 21

22 8. ECTA Interviews Interview: Cécile Samalens Cécile Samalens is the Legal Counsel Trade marks & Contracts of the Fédération Internationale de l Automobile ( FIA ). The FIA is the governing body for world motor sport and the federation of the world s leading motoring organizations. Founded in 1904 the Fédération Internationale de l Automobile is a non-profit making association. It brings together 245 national motoring and sporting organizations from 143 countries in five continents. The FIA has a dual structure with headquarters in Paris and in Geneva. Given the heady mix of high octane motor sport, trade marks and a varying career encompassing private practice, the European Commission, the International Olympic Committee and now FIA, this was always going to be a fun article to write! Taking advantage of a break in her schedule, I caught up with Cécile to not only reminisce about her time in Alicante, but to discuss her background, the challenges faced by the motor sports sector as well as her involvement with ECTA and what she saw as the organization s key strengths and areas for improvement. How it all started Having obtained her law degree from the Faculty of Law of Toulouse, France, Cécile followed her passion for travel by embarking on an Erasmus exchange program at Queen`s University Belfast, Northern Ireland and then studying for and obtaining a Masters from the University of Valparaiso, Chile in International Law. Returning to Europe in 2010, Cécile took her first steps into the world of Intellectual Property by obtaining an L.L.M in Intellectual Property Law from the Center for International Intellectual Property Studies (CEIPI) in Strasbourg. While preparing for the French Bar exam Cecile gained experience in the legal departments of Thalès, the French Basketball Federation, Sephora (part of the LVMH Group) and Beiersdorf as well as in the Intellectual Property departments of Hogan Lovells, Alicante and Dentons, Paris. This was followed by a stint in the IPR Enforcement Group of the Directorate General for Taxation and Customs Union within the European Commission, where she was part of the team responsible for drafting and implementing EU Regulation 608/2013 concerning customs enforcement of intellectual property rights. From here her specialization in and focus on trade mark prosecution and enforcement was born. Trade marks from the governing body perspective Cécile s entry into the world of sports, a topic very close to her heart, really started with The International Olympic Committee during the closing of the Sochi Winter Games and the run up to the Summer Olympics in Rio de Janeiro, She was involved in the naming, selection, clearance and protection of the Rio Games mascot, Vinicius. To put it simply, who would have thought that the choice of a mascot design and name satisfying a range of cultural, linguistic, political and marketing conditions and requirements could be so complicated! It is a complete minefield and one that others are ready to exploit at the earliest opportunity. Given the phenomenal sums involved in sports, through advertising, marketing and merchandising and the significant implications associated with getting it wrong, it is no surprise that trade marks, including the clearance, prosecution, enforcement and, in particular, their exploitation, are of paramount importance to FIA. The need to consider all aspects associated with the use of a brand or marketing concept in connection with a FIA Championship (such as the newly created, FIA Formula 2), a FIA Campaign (FIA Action for Road Safety including the recent #3500Lives and the #SaveKidsLives campaigns, FIA Action for Environment, FIA Women in Sport) or a FIA institutional event such as the FIA Sport Conference, FIA Mobility Conference and FIA Prize Giving, means that we invest in building and developing long standing relationships with our team of external trade mark counsel. We need them to be our eyes and ears on the national level advising not in a vacuum, but considering the array of trade mark related issues that come into play in protecting the exclusivity of FIA branded and sanctioned competitions. 22 I ECTA Bulletin

23 8. ECTA Interviews Furthermore, the relationship with each of FIA s member clubs at the local or national level is also very important as it can be used to resolve a potential issue far quicker than a trade mark opposition. So, ensuring that all team members (both inhouse and external) understand the political and strategic aspects of motor sport is also key. An average day at FIA. This question got a laugh and a quick response not one day is the same at FIA! I sit within the Commercial Legal Affairs team and am responsible for the wide ranging commercial aspects of the FIA activities including, amongst others, trade mark protection and enforcement. However, it does not stop here we provide legal advice and guidance on the IP aspects associated with, amongst others, events (conference organization and promotional events), the creation and management of new championships. I also assist the different departments of the FIA with the negotiations and drafting of partnership or promotion agreements. I also handle trade mark office disputes, pre-litigation and litigation matters with the assistance of my trade mark agents and outside counsels. I have regular meetings with my external clients to understand their expectations and negotiate directly with the FIA stakeholders. Cécile equates working inside an organization like FIA as a bit like playing basketball. You are working with very different players within a high tempo environment. Managing the expectations of external and internal clients, manufactures, the array of high profile sponsors combined with the level of press interest in and exposure attached to the marquee events like the FIA WORLD RALLY CHAMPIONSHIPS results in Cécile wearing many different hats when it comes to ensuring the protection, enforcement and usage of our brands during the many different events held on a daily basis under the FIA brand around the globe. The global nature of motorsport and the diverse level of involvement from grass root entry level events right up to the pinnacle of the sport at the Championship level, involving glamorous sounding trips to the bright lights and sounds of the F1 in Monaco(!), are what make it a fascinating, diversified and ever so challenging position. What are the key challenges facing the motorsport sector? In one word safety. As explained above, the FIA is the governing body for world motor sport and the federation of the world s leading motoring organizations. Its member clubs represent millions of motorists and their families. Recognizing that motor sport is inherently dangerous, the FIA works ceaselessly to improve safety at all levels of competition. The FIA Safety Department offers the possibility for manufacturers to obtain an FIA homologation in relation to specific safety equipment such as helmets, seats and overalls. Not something unique to the motorsport industry, but the issue of counterfeited goods and the illegal trade of homologated motorsport safety goods and equipment are seen as a major area of increased concern. Counterfeit goods are on my list of challenges participant and spectator lives should not be put at risk by counterfeited products. Given FIA s capacity as the governing body of motor sport and as provider of homologation certificates this issue is seen as one of the main priorities. The FIA imposes the use of homologated safety equipment (for example helmets, racing suits shoes, gloves, underwear (actually our best seller!) and racing seats) on competitors competing in certain FIA championships. That racing equipment is produced by third party manufacturers that have obtained a homologation from the FIA, ensuring that the equipment is safe and up-to-standard; an exhaustive and up-to-date list of all homologated products and their manufacturers is available on the FIA website. The FIA is increasingly confronted with instances of counterfeiting of FIA homologated safety equipment resulting in serious threats to participant and spectator health and safety. The consequences of the use of counterfeit helmets, failing to comply or come anywhere near to complying with FIA standards, simply endangers the lives of participants. "My current focus is on establishing a legal framework for safety equipment homologation so as to better define the obligations of each party, including the National Sporting Authorities, members of the FIA and the manufacturers. We are doing this through: - encouraging greater collaboration between the homologation manufacturers to ensure the development of more advanced homologation technology and tracking and detection methods; - providing continued education and training on the various legal, technological and business steps available to combat counterfeiting; - organizing training for the officials running all FIA competitions to assist with differentiating between counterfeited and genuine products; - improving FIA Internet monitoring solutions in order to shut down online distribution channels and sellers accounts on a range of e-commerce platforms. The counterfeit issue is a continuous battle, but one that we are fully prepared to address head on. ECTA strengths and areas for improvement To put it simply, Cécile is a fan. From a personal education and professional perspective ECTA is seen as a friendly organization and through its well organized and attended conferences a great way of keeping up to date on not only the latest developments but with friends and colleagues from across the EU and elsewhere. Cécile would like to see ECTA as continuing to focus its efforts and resources at being the go to authority for both its members, but also the array of EU and national bodies on trade mark related issues affecting and impacting the European market. Cécile sees this specialism as ECTA s key differentiator between it and the other user associations. Given its diverse membership of EU trade mark experts Cécile would also like to see the organization taking a greater advocacy role at the EU level on strategic issues impacting its membership. Outside of IP By Giles Corbally, Partner, BomhardIP In the limited free time available, Cécile loves all things sport related. Being based in Geneva, Switzerland and being in the enviable position of having the Alps on her doorstep Cécile enjoys nothing more than skiing in the winter months and running / skating along Lake Geneva in the summer a hard life, I can hear them all say already! If Cécile had not found IP she would more than likely have become a photojournalist for a travel/cultural magazine. Ticking the box for both travel, exploration and art. As a fellow expat myself, a wanderlust we both share! ECTA Bulletin I 23

24 8. ECTA Interviews Interview with Anna Ostanina By Craig Bailey Anyone born at 33.4 longitudes must be used to the cold. Apatity is a city beyond the Arctic Circle on the Kola Peninsula and somewhat close to the northern, Finnish border. The birthplace of Anna Ostanina is part of present-day Russia, but at her young age her parents moved to Kiev (Ukraine) as both cities were still part of the USSR. Having already honed her English skills when completing her high school at the British International School of Kiev, Anna then completed both a Bachelor Degree in International Relations and a Masters in International Private Law at the Institute of International Relations of the Kiev National Taras Shevchenko University. She got her first job with Ernst & Young Law in Kiev when her entry to a thesis competition caught the attention of the management of the company. Due to a merger deal, Ernst & Young Law became DLA Piper Ukraine LLC, where she worked for a total of almost 4 years as part of their IP and Technology practice group, in both Kiev and London offices of this international law firm. Anna holds an LL.M specialized in Intellectual Property Law from the London School of Economics and a Certificate in IP from UNISA (University of South Africa)/WIPO joint IP programme. With her LSE thesis on Ambush Marketing of Sporting Events Anna attracted the attention of UEFA and she accepted a position in their Legal Department in Nyon, Switzerland from At UEFA her tasks, as in-house lawyer, involved various issues related to the organization and staging of sporting events, including IP related issues; it was a unique opportunity that kept her busy through the UEFA EURO 2012 tournament that was held in Poland and Ukraine and other smaller football tournaments held during that time period. For Anna, family is important and she moved to Belgium in 2012 and took some time off starting her family and continuing her education with KU Leuven where she completed an Advanced Masters program specialized in IP&ICT with her thesis on the topic of Open Innovation and the role of Intellectual Property Rights. She had earlier contact with ECTA and, when the position for Manager of Legal Affairs became available, ECTA invited her for an interview. Anna looks upon her mom as one of her most influential heroes. She describes her mother as being a very strong, wise, highly intellectual, sensitive and beautiful woman, reasonably strict while still just, and who taught Anna to never be in conflict with her conscience and influenced Anna s decision to become a lawyer. Anna is a very artistic person and enjoys music, dancing, poetry, drawing and photography. She says that this love of creativity brought her to IP. IP law, to her, promotes creativity and inventive imagination while still putting emphasis on the technical details. Now at ECTA, Anna is genuinely impressed with the dedication of ECTA Committee Members and the Management Committee s work. She has observed the amount of time and expertise offered by Management, Council and Committee Members alike to various ECTA matters in addition to their everyday work and recognizes they do this for the general good, without receiving any direct compensation for such work. For this reason, she considers the current projects to create common working tools and improve communication to be of high importance, as it will help ECTA Members do these tasks more efficiently. With a young daughter (now under 2 years) Anna doesn t find as much time as she would like for her artistic ambitions, but she continues dancing salsa and wishes to start learning Spanish, and later Dutch, to compliment her current languages of Russian, Ukrainian, English and French. Having studied and worked in an international environment and having travelled around the world due to her passion for travelling, Anna enjoys meeting people from different cultures and backgrounds and continues being interested in IP issues in Europe and internationally. Anna is ready to do great things here at ECTA. Please be sure to say hello to her in Budapest and let her know how much she is appreciated. 24 I ECTA Bulletin

25 9. ECTA Article THE MOON BOOT IS A COPYRIGHT ICON In a final decision published on 12 July 2016 (No. 8628/2016) and left unchallenged by the losing parties, the IP Court of Milan granted copyright protection to the Moon Boot boots by Tecnica Group S.p.A., the famous après-ski boots in vogue since At the same time, said decision declared that the Anouk boots by Anniel infringe Tecnica s copyright. Moreover, it enjoined the defendants from further manufacturing and marketing the Anouk boots. In other words, according to the Milan Court, Tecnica s iconic Moon Boot après ski-boots are a work of art: as such, they deserve full copyright protection (their author is still alive) and entitle Tecnica to obtain an injunction against its reproduction, elaboration and distribution. I. The case: The famous Moon Boot après-ski boots are depicted as follows: The Anouk boots are depicted as follows: Tecnica sued Anniel and its distributor and argued that the Anouk boots was an infringement of its copyright on the Moon Boot boots: according to Tecnica said violation inter alia included the violation of the rights on the Moon Boot boots as a work having creative character and artistic value (as per Article 2 No.10 of Italian Copyright Law and Article 17 of EC Directive 98/71/EC on the legal protection of designs) and this, together with the violation of Tecnica s copyright on Moon Boot boots s technical drawings. Finally, it must be observed that, according to Tecnica Group s allegations, the Anouk boot was also an infringement of some among Tecnica Group s registered Community designs and unfair competition. II. The decision: Milan Court s first conclusion was that the Moon Boot boots meet the creative character and artistic value requirements set forth by Article 2 No. 10 of the Italian Copyright Law for a design product to enjoy copyright protection. According to Milan Court, The Moon Boots may well boast of the characteristics of a creative work, having the artistic value required by Art. 2 No. 10 of the Copyright Law, in view of their particular aesthetic impact, which, at the time of their appearance on the market, profoundly changed the very aesthetic concept of après-ski boots, becoming a true icon of Italian design and of its ability to make the taste of an entire historical epoch irreversibly evolve in relation to everyday objects. Not surprisingly, the product received national and international awards, and was the subject of widespread Italian and international publication on monographies on contemporary design. The Moon Boots enjoyed favorable reviews by experts and designers and a flattering and broad acceptance by the public, consistent over time and it is meaningful that in 2000 they were chosen by the Louvre Museum as one of the 100 most significant symbols of twentieth century international design. Indeed, design items express the artistic conceptions lying behind the changing world and, at the same time, anticipate ways of expression, thus showing the trends and the influence of the artistic movements of the times to which said items belong. This is the value of the Moon Boot boots; the Moon Boot boots share said value with only a few hundred other industrial products of all branches of design. Having thus ascertained that the Moon Boot boots are protected by copyright law and based upon the correspondence exchanged by the parties before Tecnica filed its action, Milan Court also declared the following: The Anouk model by the defendant Anniel presents all the creative features of the Moon Boots, except that the height of the slider is reduced and the couples of eyelets are two instead of three (with an almost imperceptible aesthetical effect). Not surprisingly, the audience of users, especially those conscious of fashion phenomena, such as thematic blog managers, welcomed Anouk with expressions that cannot set aside reference to the iconic prototype by Tecnica, for example: the evolution of the Moon Boots: now you wear them short, the Anouk boots by Anniel resemble the Moon Boots, in a more refined version and with the Anniel motifs and colors, Anniel went back to the iconic Moon Boots. The Judges further highlighted that, contrary to Author: Carlo Sala Studio Legale Carlo Sala what was stated by the defendant, the shape of the Moon Boot boots could not be considered in the public domain; because Tecnica, in fact, was shown to have taken appropriate action against copies. III. Comment: The Milan Court decision is a landmark decision mainly for the following practical reasons: i) by acknowledging that the Moon Boot boots are a work of art, the Milan Court acknowledged that all branches of design and, therefore, all types of product can be granted copyright protection provided the plaintiff proves that, in the specific case and irrespective of the type product at issue, the requirements of creativity and artistic value are both objectively met; ii) further to copyright acknowledgement, defendants cannot object that in consequence of acts or inactivity of the right holder, the copyright has become devoid of any distinctive character: revocation on said grounds has nothing to do with copyright law and, once the requirements of creativity and artistic value are both objectively met, copyright protection is granted until the seventieth year after the author s death, which means that, as long as the copyright is in existence, any reproduction and elaboration of the Moon Boot boots is unlawful irrespective of any allegation focused on the existence of widespread copies in the market. Verifier: Alessandro Massetti AKRAN ECTA Bulletin I 25

26 10. ECTA Case-law reports Christian Lacroix and company Christian Lacroix or how losing its renown and being filed fraudulently: a not-lifelong but not-ended trade marks story Author: Pascale DEMOLY Cabinet DEMOLY Mr. Christian Lacroix worked for the Christian Lacroix company as designer and artistic director, first directly, and later through the XCLX company, until 2009 when, under a business continuation plan, it was decided to close down the women s haute couture and readyto-wear design businesses to concentrate only on trade mark licensing, and Christian Lacroix s contract with XCLX was terminated. The Christian Lacroix company owns a French trade mark for Christian Lacroix filed in 1987 to designate inter alia fabric and textile goods, bed and table covers, household linen, and an EU trade mark for Christian Lacroix filed in 2008 in classes 18, 25, and 27. In 2011, the Chirstian Lacroix company discovered that Christian Lacroix and a company named SICIS had designed a furniture collection sold under denomination Designed by Mr. Christian Lacroix. In February 2011, the Christian Lacroix company asked SICIS to cease all communication using this expression. The Christian Lacroix company then went on to file an EU trade mark for Christian Lacroix to designate inter alia furniture and summoned SICIS for infringement of its trade marks and harm to their repute. Christian Lacroix and XCLX intervened voluntarily in the Verifier: Thomas CUCHE Cabinet DUCLOS THORNE MOLLET VIEVILLE proceedings. The defendants requested that the above-mentioned trade marks be declared null and void. The validity of the contract called trade mark assignment Under a 1987 contract, Christian Lacroix had authorized the Christian Lacroix company to use his family name to carry out business activities, to file it as a trade mark and to extend the list of goods and services. The Court of Appeals considered this undertaking to be null and void because the contract contained no provisions concerning its term, based on the principle of prohibition of perpetual undertakings as set forth in article 1780 (the Hiring of Servants and Workers) of the French Civil Code, so that the EU trade mark for Christian Lacroix filed later was cancelled because it infringed Christian Lacroix s name. The Christian Lacroix company first argued that the authorization granted to third parties to use a person s family name for commercial purposes implied an assignment of this family name, which they claimed had thus become detached from the person so named and become a distinctive sign in its own right, in the context of a contract that was performed instantaneously, once and for all. The French Supreme Court dismissed this argument, confirming that the contract was one of continuing performance, but reversed the decision for violation of articles 1134 (effect of obligations) and 1780 of the French Civil Code, because such a contract could be terminated unilaterally, subject to giving appropriate notice. The fraudulent nature of the EU trade mark for Christian Lacroix filed in 2011 to designate furniture The Supreme Court approved the Court of Appeals decision ruling that the trade mark had been filed in bad faith. Indeed, the Christian Lacroix company filed the trade mark in dispute after SICIS s reply to the formal notice in which the latter argued that the former did not own any trade marks covering furniture in class 20. The Christian Lacroix company then used the trade mark in support of its summons. The 2009 license contract granted to a designer for wallpaper, cushions and covers was deemed not sufficient to evidence the good faith of the Christian Lacroix company, which had not provided any good explanation as to why it had waited until 2011 to file the sign for furniture. The Supreme Court therefore rightly inferred that the trade mark had been filed with the intent of using trade mark law in a way inconsistent with its essential purpose, namely as a means to be used in the infringement action initiated rather than as an indicator of origin. Nevertheless, the Supreme Court limited the scope of its decision solely to the goods of class 20, as there was not adequate evidence to show that the application was fraudulent for goods of classes 4 and 11. The absence of connection between fabrics and furniture The Supreme Court approved the Court of Appeals decision that had considered these goods as dissimilar: the fabric-covered lighting fixtures, armchairs and sofas sold by SICIS were finished products with specific functions that could be used immediately, whereas the fabrics designated by the Christian Lacroix company s trade mark were intermediary products from the textile industry designed to be converted for multiple applications. 26 I ECTA Bulletin

27 10. ECTA Case-law reports The lack of repute of the French trade mark for Christian Lacroix [as defined by article L of the French Intellectual Property Code] In this respect, the Supreme Court mentioned several points: According to the 2009 business continuation plan, the Christian Lacroix company closed down the women s couture and ready-to-wear design businesses to concentrate only on trade mark licensing. The turnover dropped from 30 million between 2005 and 2008, to 4.6 million in A proportion of 95% of the 2012 turnover was generated by the trade mark licenses granted, which mostly covered products sold abroad. Based on surveys made in 2014, it appeared that the renown of the trade mark that the Christian Lacroix company had claimed to benefit from was due to its status in the field of haute couture, when Christian Lacroix was still a clothing designer. The trade mark was closely tied to his former activities, while the public s current knowledge of the trade mark was for accessories and lingerie. These were later uses which corresponded to the changeover to trade mark licensing, which knowledge moreover appeared to be declining. The Christian Lacroix company did not put forward any market share or investments made to promote the trade mark. The Supreme Court approved the Court of Appeals decision that had concluded that the French trade mark for Christian Lacroix could not benefit from the extended protection of article L of the Intellectual Property Code. The Christian Lacroix Company retains its right on the EU trade marks filed in 2008 and in 2011 (for classes 4 and 11).and the second court of appeal will have to reconsider the case in the light of the legal views expressed by the Supreme Court. ECTA Bulletin I 27

28 10. ECTA Case-law reports The KitKat decision: the difficulty of proving acquired distinctiveness through use Another blow for the Swiss food and beverage company Nestlé in their bid to permanently monopolize the shape of the KitKat candy bar by means of trade mark protection: on 15 December 2016 the General Court, in Case T112/13, has annulled the decision of the Board of Appeal of EUIPO that granted trade mark protection to the shape of the candy bar. The cancellation action, filed by Mondelez (formerly: Cadbury), was initially upheld by the Cancellation Division. Nestlé successfully appealed this decision with the Board of Appeal which annulled the Cancellation Division s decision and held that the shape of the well-known candy bar had acquired distinctiveness through use. Mondelez on its turn appealed this decision and convinced the General Court to annul the decision of the Board of Appeal. Acquired distinctiveness A sign must have distinctive character in the entire European Union to be accepted on absolute grounds. A lack of distinctive character in part of the European Union is sufficient for an application to be rejected according to Article 7(1)(b) EUTMR. The latter mainly applies to word marks, which are often considered distinctive in just a part of the European Union due to lingual reasons. It is unlikely on the other hand that the shape of a product will ab initio carry distinctive character in parts of the European Union only. In fact, shape marks will usually be perceived the same way by the public in the entire European Union. This means that in general a shape has to acquire distinctiveness in the entire European Union in order to become eligible for protection. The decision In its decision of 11 December 2012, the Second Board of Appeal of EUIPO (Case R 513/2011-2), concluded that the shape of the KitKat candy bar had acquired distinctive character through use. Nestle showed that in 2007 around 45% of the public in seven Member States immediately recognized the shape of the candy bar as a source of origin. At the time, those seven Member States represented almost 90% of the popu- lation of the European Union. This was sufficient according to the Board. Unfortunately for Nestlé, the General Court did not share the Board s view. Even though the evidence showed that a substantial portion of the public perceived the shape of the candy bar as a source identifier, the General Court ruled that this was not sufficient. Instead, the relevant question, according to the General Court, is whether it is proven that throughout the European Union a significant proportion of the relevant public perceives the mark as an indication of the commercial origin of the goods designated by the subject mark: 142. However, that criterion is incorrect: the relevant question is not whether it was shown that a substantial proportion of the public in the European Union, merging all the Member States and regions, perceived a mark as an indication of the commercial origin of the goods designated by that mark, but whether, throughout the European Union, it was proved that a significant proportion of the relevant public perceived a mark as an indication of the commercial origin of the goods designated by that mark. A lack of recognition of the sign as an indication of commercial origin in one part of the territory of the European Union cannot be offset by a higher level of awareness in another part of the European Union. In other words, according to the General Court one should not merge all Member States within the European Union and assess the proof filed for the Union as a whole to determine whether a substantial part of the public of the European Union perceives the mark as an indication of commercial origin (a substantial percentage of the population of the EU). Instead, it appears one should study the proof filed on a country by country basis, assessing whether or not the relevant public in each subject Member State perceives the shape as a source identifier. Sufficiently proved In the Judgement of 24 May 2012, Chocoladefabriken Lindt & Sprüngli v OHIM, C-98/11 it was decided that it would be unreasonable to require proof for each individual Member State and that instead acquisition must be sufficiently proved in quantitative terms. What is considered to be sufficiently proved in quantitative terms however has yet to be defined. So far the Court has held that there was insufficient proof of acquired distinctiveness through use of a mark throughout the entire European Union where evidence was missing for 12 of the 27 Member States (Judgement of 21 April 2015, Representation of a grey chequerboard pattern, T-360/12) and where evidence was missing in 24 of the 28 Member States (Judgement of 16 March 2016, Työhön- 28 I ECTA Bulletin

29 10. ECTA Case-law reports valmennus Valma v OHIM,shape of a game box with wooden blocks,t-363/15). Authors: Nicole van Roon LLM Benelux and European trade mark and design attorney Arnold & Siedsma Robbert Keij Trainee trade mark and design attorney In the present case the General Court agreed with the Board of Appeal that Nestlé successfully showed that the candy bar has acquired distinctiveness through use in France, Italy, Spain, United Kingdom, Germany, the Netherlands, Denmark, Sweden, Finland and Austria. From the decision of the Board of Appeal it appears that no evidence was filed for the remaining EU members at the time of filing the subject trade mark registration, i.e. Belgium, Ireland, Portugal, Greece and Luxembourg. The General Court concluded that as it is not proven that the trade mark has acquired distinctiveness through use in these Member States, the evidence does not suffice to show acquired distinctiveness in quantitative terms. The decision of the Board of Appeal is annulled. Conclusion The decision of the General Court once again confirms how difficult it is to successfully register and maintain a shape mark in the European Union. Even when you can prove the trade mark is perceived by a substantial percentage of the public as an indication of the commercial origin (in the present case: almost 50% of the public of the Member States representing almost 90% of the population), these figures are not sufficient to show acquired distinctive character through use in the entire European Union. It goes without saying that Nestlé and the other party Mondelez UK Holdings (formerly known as Cadbury) are not finished with each other yet, since Nestlé filed an appeal against the decision on 15 February Hopefully the Court of Justice will address what is to be defined as sufficiently proved in quantitative terms and will give trade mark owners and trade mark attorneys more clarity on this subject. Verifier: Karel Šindelka Attorney-at-law, Partner Šindelka & Lachmannová ECTA Bulletin I 29

30 10. ECTA Case-law reports Swedish Supreme Court in landmark decision concerning damages awarded after annulment of interlocutory injunction (Bringwell vs Cederroth,T 230/15) Introduction In this case the Supreme Court clarifies the liability for damages as well as which period and which general principles of the law of torts should be considered when calculating damages awardable when an issued interlocutory injunction is later revoked. Background In 2006 Cederroth launched a liquid multivitamin product under the trade mark MULTITOTAL. At that time the only liquid multivitamin product on the Swedish market was sold by Hela Pharma under the trade mark MIVITOTAL. Hela Pharma initiated a trade mark infringement action. On 1 March 2006, an interlocutory injunction was issued against the use of MULTITOTAL ex parte. Upon reconsideration the District Court maintained the decision. The Appeal Court upheld the decision and the Supreme Court denied leave to appeal. The interlocutory injunction was ultimately maintained until 26 February 2010 when the Appeal Court held that there was no trade mark infringement. This judgment was appealed, but on 12 October 2010 the Supreme Court denied leave to appeal. The judgment at issue concerns Cederroth s claim for damages caused by the interlocuto- Author: Helena Wassén Öström Advokat / Head of Trade mark and Design Prosecution Advokatfirman Lindahl KB 30 I ECTA Bulletin

31 10. ECTA Case-law reports ry injunction. Cederroth claimed loss of profit from 1 March 2006 until 31 December In the District Court, Cederroth was awarded SEK 20 million in damages and the Appeal Court upheld this decision. Decision The main question is whether compensation for loss of profits should be awarded when an interlocutory injunction issued under trade mark law is set aside on the ground that no infringement has taken place. Initially the Court found that the Swedish Trade Mark Act contains no rule in relation to liability for damages caused by interlocutory injunctions. However, the claimant must provide security for any damage caused through the interlocutory injunction and this implies, together with specific rules in the Enforcement Code, that a basis for liability exists. The Court stated that a strict liability applies for all damages (including pure economic loss) regardless of possible negligence on behalf of the indemnifier. The Court further confirms that the general principles of tort should apply. The judgment makes it clear that the principle of proximate cause requires something more than mere logic causation. It needs to be of a specific nature and has some qualification. Effects of the tortious act which are so unusual or improbable that the indemnifier should not have taken them into account should be disregarded when calculating the damages. Further, the injured party is under an obligation to take reasonable actions to limit the damages. In order to serve as guidance, one could consider what actions the injured party would have taken in case the party knew that no damages would be awarded. Importantly, the Court held that after the issuance of the interlocutory injunction the injured party was under no obligation to limit the damages by selling the goods under a different trade mark or generic name. It is considered an adequate outcome of an injunction that the goods are withdrawn from the market, even though the injunction is in fact directed only against the trade mark and not the goods in question. The difficulties connected with a possible relaunch under a different trade mark or generic name signify that the injured party is normally under no obligation to make such temporary relaunch in order to limit the damages. The critical issue, when calculating the damages, is what would have happened if the injunction had never been issued. Compensation should be awarded for all damages caused by the party liable to pay damages, taking into account, inter alia, if proximate cause exists and the injured party s responsibility to limit the damages. If it is impossible or very difficult to adduce full proof of the damages caused, the burden of proof could be mitigated by the application of Chapter 35, Section 5 of the Procedural Code, under which the Court could make estimates as regards the quantum of damages. In the judgment, the Court underlines that this regulation does not release the party requesting damages from the obligation to provide evidence. It only provides a relief on the obligation to prove Verifier: Håkan Borgenhäll Partner, Head of IP Advokatfirman Vinge KB damages. The party requesting damages still has to adduce evidence and make it plausible that there is a general difficulty (applicable to any party in the same situation) to provide full proof. When calculating the loss of profit, the period of time, the probable selling price, corresponding purchase price and freight cost were taken into account. Moreover, probable sales volumes and other costs connected with the contemplated sale were considered. Damages should be awarded from the date on which the injunction (constituting basis for the liability) was issued until it was revoked. The end of the period is based upon the revocation decision regardless of whether the decision has gained legal force. In the case at hand, Cederroth was awarded damages for loss of profit from the date of issuance until the injunction was set aside by the Appeal Court and for a certain conversion period thereafter. After having evaluated the evidence and calculations provided by Cederroth, the Court applied Chapter 35, Section 5 of the Procedural Code in order to make some estimation of the damages. However, in view of flaws in the evidence presented by Cederroth the section in question were not fully applied. Ultimately, the Supreme Court issued a decision to award SEK 2 million in damages. Each party was ordered to bear its own litigation costs. Comment The fact that a claimant who applies for an interlocutory injunction runs the risk of having to provide compensation for an interruption of sales means that it should be carefully considered whether or not to include a motion for an interlocutory injunction in an infringement action. On the other hand, the possibility of being able to continue being the sole provider of a product on the market during the term of the injunction (as in the case at hand) could be worth quite a lot. ECTA Bulletin I 31

32 10. ECTA Case-law reports UK Scottish Court of Session blows final whistle on THE TARTAN ARMY Overview This case No. [2017] CSOH 22 A49/09 raised the interesting question: is there a likelihood of confusion where a mark, THE TARTAN ARMY, commonly used and recognised as the nickname for Scottish soccer fans, is registered as a trade mark by a company for commercial purposes and a third party then uses that mark? Moreover, if the third party applies to revoke the registration for non-use, can the lack of success of the national soccer team and the corresponding reduced commercial attractiveness of the mark, constitute a proper reason to preserve the registration against revocation? Background Proceedings had initially been launched back in However, the case had not initially been allocated as an IP case which led to delays and this factor and a substantial stay between meant that the Court only finally issued a decision in February THE TARTAN ARMY Since as early as the 1970s, fans of the Scottish national soccer team had been collectively known as THE TARTAN ARMY both by the media and the public at large. Mr. Adie, the Claimant s predecessor in title, at the height of the Scottish national soccer team s football success in the late 90s, registered, inter alia, a number of UK registrations for THE TARTAN ARMY in multiple classes, intending to sell a range of merchandise. In 2005, a Mr. Tannock and Mr. Emerson approached Mr. Adie for consent in relation to the publication of a fanzine magazine under the Author: Mark Hiddleston UK Chartered Trade Mark Attorney, UK Trade Mark Litigator, and Irish Solicitor Hiddleston Trade Marks, 32 I ECTA Bulletin

33 10. ECTA Case-law reports mark THE FAMOUS TARTAN ARMY. Mr. Adie subsequently sent an to Mr. Emerson confirming that he had no objection to the use of the name in relation to such a publication. Unfortunately the fortunes of the Scottish soccer team declined substantially after 1998 and commercial use of the trade marks by the Claimant was correspondingly limited. Ultimately, the parties fell out over a dispute relating to the organisation of paid tours for fans by the Defendant s fanzine, which clashed with the Claimant s activities. The Claimant subsequently withdrew its consent to the continued use of the trade mark by the Defendants. Proceedings were commenced for trade mark infringement and passing off and the Defendant counter-claimed for invalidity and revocation: ISSUES Invalidity The Defendant s counterclaim for invalidity on the basis that THE TARTAN ARMY was devoid of distinctive character and not capable of distinguishing the goods/services because it was simply the generic name for Scottish soccer fans failed: the Court held that although the mark could have a generic meaning, this did not prevent the mark from also being distinctive in terms of identifying the goods or services covered by the registration. The mark might both be used as a badge of allegiance for the Scottish soccer team but also indicate origin in relation to the goods/services covered by the registration. Revocation The Defendant s revocation action for non-use, however, was more successful: the Claimant argued that the commercial success and use of the trade mark was dependent upon the corresponding success of the Scottish national team. The vicissitude of the national team made it reasonable for the proprietor to seek protection for a broad range of goods and services which would be marketed at circumstances when the team was successful and interest most high amongst the fan base. In other words, the lack of current success of the Scottish soccer team constituted a proper reason for non-use. In this case, however, the Claimant had continued to use the mark, albeit upon a limited basis. As such, use of the mark was not solely dependent upon the success of the Scottish national team. Accordingly, the trade mark registration was part-revoked to the goods/ services for which use had been made in classes 25, 35 and 41. Personal bar The Defendant argued that Mr. Adie s in 2005 constituted a personal bar/consent (estoppel). However, the facts indicated that the Defendants had already begun to prepare use prior to receipt of the . Secondly, the gave no indication as to whether the consent was revocable and this had subsequently been revoked when the Claimants withdrew consent later. In addition, any licence given to Mr. Tannock and Mr. Emerson was personal to them and not transferable. Since these individuals had subsequently assigned their rights to a later formed company, the licence could not be relied upon by the successors in title. Infringement The Court held that the marks were not identical, but accepted that the relevant goods/ services were identical or similar and that THE FAMOUS TARTAN ARMY was indeed similar to THE TARTAN ARMY. However, it was still necessary to consider whether there was likelihood of confusion. The Court emphasized the word FAMOUS appearing in the Defendant s mark. In its view, this conveyed to the Relevant Consumer the message that the magazine owed its allegiance and referred to the FAMOUS TARTAN ARMY, namely the Scottish soccer fan base and not therefore the proprietor. As such, there was no likelihood of confusion. The Claimant s claim to infringement under Section 10(3) (dilution/tarnishment or free riding) also failed: the Court doubted whether the proprietor had a reputation for the purposes of 10(3) but, in any event, in the circumstances use of the term FAMOUS again would signal to the Relevant Consumer that the magazine referred to the Scottish fan base. There was therefore no dilution or free riding. Passing off The claim to passing off was also dismissed on the basis that, for the reasons outlined above, there was no misrepresentation by the Defendant. Conclusion This case highlights the dangers of registering a trade mark which is already known, inter alia, as the name of another group such as a fan base;unless there is identity between the marks and therefore no requirement to establish confusion, small differences between the marks may be sufficient to avoid a finding of likelihood of confusion. Verfier: James Fish Chartered UK Trade Mark Attorney and UK Trade Marks & Designs Litigator Head of Trade Marks and Designs Group JA Kemp ECTA Bulletin I 33

34 10. ECTA Case-law reports CANCELATION TRADE MARK ACTION REJECTED FOR NON-FULFILLMENT OF THE CUMULATIVE CONDITIONS ON BAD-FAITH AS ESTABLISHED BY ECJ ❶ ❷ Author: Delia Belciu Attorney at Law / European Trade Mark and Design attorney DB Law Office On 22 March 2016, in case between S.C. SMART EXIM COM S.R.L and S.C. SMARTECH S.R.L, the High Court of Cassation and Justice of Romania has issued Decision No. 652 by which it has rejected as unfounded the second appeal filed against the decision issued by the Bucharest Court of Appeals concerning the cancelation of the Romanian (RO) figurative trade mark ❶ filing No. M / , trade mark No , registered in the name of S.C. SMARTECH S.R.L, (the Defendant ), for goods and services in classes 28, 35, 41 and 43 on the basis that, the cumulative conditions set by the ECJ in case C529/07, Chocoladefabriken Lindt & Sprüngli AG vs Franz Hauswirth GmbH were not met. The Appellant, S.C. SMART EXIM COM S.R.L. carries out activities in the same field as the Defendant, namely making of computers and other equipment for the exploitation of gambling, being set up as a company in During the trial, the Defendant has presented a copyright assignment agreement from 2007 for the figurative JOKER element - ❶, for which the trade mark protection has been requested in 2011 and which made the object of the cancelation action. The Appellant invoked the bad faith as a ground for the cancelation of the JOKER figurative sign, as he claimed that he was using from 2004 a prior identical sign for identical goods and services, considering also that his prior sign was notorious. At the time of filing the cancelation action, the Appellant did not invoke any registered sign, but further in the procedure, he invoked one registered RO trade mark JOLLY GAMES - ❷, registered for goods and services in classes 9, 28 and 41 since 2008 and a RO trade mark application SMART GAMES, the last one being rejected at registration. Although, both the Court of Appeals and the High Court of Cassation and Justice rejected this second claim as filed after the procedural deadlines, it has been held that, from the registration certificate it resulted that the Appellant had prior filed for registration the JOLLY GAMES trade mark which led to the presumption that this sign had been used by the Appellant in its activity at least since its registration. Also, it was presumed that the Defendant knew about this prior trade mark considering that the filing application and the registration decision were both published in the Official Gazette and because both parties were acting on the same market. The Appellant had also filed print screens certified by a public notary from which it resulted that within the archives of its website there was information with the JOKER sign that made the object of the litigation since 2004 and He has also filed an approval certificate issued by the Romanian Legal Metrology Office from 2009 which contained the graphical representation of the JOKER sign identical with the one registered in the name of the Defendant. The courts have rejected to receive as proof the authentic statements given in front of the public notary by some persons who have declared that they knew about the Appellant s activity since 2004 and that they were aware of the use of the JOKER sign, as the Appellant had provided proof by testimony in front of the court. Also, the fact that the Appellant was using the JOKER sign, was not considered as proof of its notoriety. The burden of proof was for the Appellant who failed to provide any proof in this sense. Considering all the above, the Court found that the use of the prior sign by the Appellant had been proven and therefore, the first condition, the objective one, imposed by the ECJ decision in case C529/07, Chocoladefabriken Lindt & Sprüngli AG vs Franz Hauswirth GmbH, namely that the applicant knew or must have known that a third party (in this case the Appellant) was using, in at least one Member State, (in this case, Romania), an identical or similar sign for an identical or similar product capable of being confused with the sign for which registration was sought, was met. Nevertheless, both the Court of Appeals and the High Court of Cassation and Justice found that the Appellant failed to prove that the second condition, the subjective one, was met, namely that the Defendant s intention was to prevent the Appellant from continuing the use of the JOKER sign or that he registered the sign with the intention not to use it. The Court considered that, from all the proof brought by the Defendant had proven beyond any doubt that he is using the sign for the goods and services for which such was registered as a trade mark. For all the above reasons, the High Court of Cassation and Justice rejected the second appeal and considered that the criteria imposed by the ECJ are applicable also to national trade marks for identity of reasoning, in order to apply in a unitary manner the European regulation throughout the entire territory of the European Union so that the trade mark norms are duly harmonized. Verifier: Denisa Markusev European trade marks attorney ROMINVENT 34 I ECTA Bulletin

35 11. ECTA GossIP It seems since the current ECTA Publications Committee formed there has been one marriage each year just from this committee alone. This time it is the turn of Craig Bailey of Corsearch who exchanged vows in March with Iuliia Shulika, his partner for several years. Since the wedding was held in Belgium, it is always necessary to be prepared for rain, no? Speaking of weddings, some of us noticed years ago that Aron Laszlo of Oppenheim was spending time at the conferences with Melanie Bosshart of Switzerland. In fact, they met at INTA in Boston (2010) and married in 2013 and now are the proud parents of two daughters. Melanie has continued practicing as a Swiss IP Attoney at Kikinis Law Firm while Aron has been promoted to Partner at Oppenheim this year! Besides their practice and family Aron has been playing in a Hungarian band called Crescendo for almost 15 years and they have had songs played on Hungarian national radio. He also has run several marathons (in Budapest and Lucerne). Melanie now speaks beautiful Hungarian and has taken up making lavish birthday cakes including forming figures by hand. It was with great sadness that we learnt of the passing on 20th April 2017 of Wubbo de Boer, former President of the European Union Intellectual Property Office (EUIPO), at that time OHIM. Wubbo de Boer was a leading figure in the field of intellectual property and business, both in his home country of the Netherlands and at international level. He held senior posts in the Dutch Ministries of Transport and Economic Affairs before joining the OHIM as President, serving two terms from 2000 to He was a man of firm ideas and strong views, but he was always willing to engage in respectful discussion and his dedication and commitment made a valuable contribution to the world of trademarks in the European Union. He will be sadly missed by all his family, friends and colleagues, to whom we extend our condolences and deepest sympathy. ECTA Bulletin I 35

36 ECTA Bulletin June

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