Il 18 gennaio 2003 il Senato ha approvato il ddl n. 1609, che modifica le disposizioni processuali di cui all'articolo 134 del codice della proprietà industriale, di cui al decreto legislativo 10 febbraio 2005, n. 30, rendendo possibile l'utilizzo, nei procedimenti assegnati alle sezioni speciali per la trattazione delle controversie riguardanti la proprietà industriale e intellettuale, del diritto societario introdotto con il decreto legislativo 17 gennaio 2003. (Disegno di legge Senato della Repubblica 16/01/2008, n. 1609)
giovedì 24 gennaio 2008
mercoledì 23 gennaio 2008
Ue - The European Group on Ethics' opinion on the production of food from cloned animals
The European Group on Ethics (EGE), an independent group of experts whose function is to advise the Commission on science, technology and ethics issues, recently published an opinion against the production of food from cloned animals. EGE states that it doubts that the production of such food is "ethically justified" and makes some recommendations to promote European discussions and policies to address this issue.
The Commission requested EGE's opinion as part of a wider debate regarding food products originating from cloned animals, which is currently going on in both the EU and the U.S. The European Food Safety Agency (EFSA) also examined the issue and recently stated that such food is unlikely to be dangerous for consumers.
The Commission will examine EGE's and EFSA's opinions and is expected to launch a public consultation. Given the role of ethics in European research, the outcome of the debate may influence future research in this area.
The Commission requested EGE's opinion as part of a wider debate regarding food products originating from cloned animals, which is currently going on in both the EU and the U.S. The European Food Safety Agency (EFSA) also examined the issue and recently stated that such food is unlikely to be dangerous for consumers.
The Commission will examine EGE's and EFSA's opinions and is expected to launch a public consultation. Given the role of ethics in European research, the outcome of the debate may influence future research in this area.
venerdì 18 gennaio 2008
The Opinion by ECJ Advocate General on the case C-102/07 Agidas AG and Adidas Benelux
The opinion by the ECJ Advocate General on the case C‑102/07, Adidas AG and Adidas Benelux BV v. Marca Mode CV, C&A Nederland, H&M Hennes & Mauritz Netherlands BV and Vendex KBB Nederland BV, has been issued on January 16, 2008.
With a somewhat surprising “middle of the road” opinion the AG Dámaso Ruiz-Jarabo Colomer has affirmed that:
1. while for originally non distinctive (due to their descriptive character) marks even an acquired distinctiveness or an elevate degree of renown cannot cure their original (I called it the genetic) defect, so that the public interest prevents their owners to oppose use of similarly descriptive marks,
2. for marks which were originally non distinctive for reasons others than descriptiveness (like in the case at hand, i.e. three stripes with little or none imaginative content) but have then become distinctive and well known due to the efforts of the TM owner, to deny protection against similar marks (two stripes, four stripes), would frustrate the Directive’s objective and rational, since there is no really public interest in keeping free signs which are per sè incapable to communicate to the consumers the origin or the qualities of the goods and services.
If confirmed by the ECJ the impact of this opinion may be a blow to the enforcement of many originally descriptive trademarks which have lately become well known through intense use and promotional investments and which now will see the possibility to oppose other similar marks severely curtailed. On the other hand, figurative marks and arbitrary marks should see the extent of protections quite enlarged.
The facts underlying the case are fairly straightforward. Adidas is famous for its three-stripe trademarks and owns many registered trademarks in this respect. When it became aware that several clothing companies were using a two-stripe pattern, it sought a court order to prevent them from marketing clothing with the three-stripe pattern or a similar pattern, such as the two-stripe pattern. The Dutch Court of Appeal decided that because of the repute of the three-stripe mark, its scope of protection was broad. Although initially the mark was not very distinctive, it had acquired distinctiveness through use.
However, the Court of Appeal also stated that the broad scope of protection did not mean that other stripe patterns fell within this scope. To that end, it stated that such patterns are common and should be available for third parties. Adidas appealed from this judgment to the Dutch Supreme Court, essentially disputing the role assigned by the Court of Appeal to the public interest. The Supreme Court decided that clarification from the ECJ was required and submitted a request for a preliminary ruling on three questions, the most important of which is whether or not the public interest (in not unduly restricting the use of certain signs by competitors) should influence the scope of protection of a trade mark that was not distinctive ab initio or that was strictly descriptive, but has acquired distinctiveness through use.
The AG’s opinion starts by recognizing that as a matter of law a sign that lacks distinctive character, can nevertheless acquire distinctiveness through use. Such a sign can therefore become a valid trade mark, able to denote the origin of products and/or services. However, this may come into conflict with the German based theory of "Freihältebedürfnis" (the need to keep certain signs free for use by all) which was already examined by the ECJ in its famous Chiemsee decision (cases C‑108/97 e C‑109/98, Windsurfing Chiemsee of May 4, 1999).
The AG declines to give a straight answer to the compatibility of the Freihältebedürfnis with EU law, but essentially denies that Freihältebedürfnis may be applied across the board. For the AG, there is a difference between non distinctive marks by reason of descriptiveness (i.e. when the sign falls into art. 3(1) (c) of the Directive) and non distinctive marks for other reasons (i.e. when the sign falls into 3(1) (b)). While the for the former no matter what, the TM owner cannot really expect to own a concept, for the latter, the efforts of the owner to “characterize” its mark and make the consumer aware of the nature of mark of a certain non originally distinctive mark should not be parasitized by third parties and accordingly Freihältebedürfnis should only apply to originally descriptive marks.
With a somewhat surprising “middle of the road” opinion the AG Dámaso Ruiz-Jarabo Colomer has affirmed that:
1. while for originally non distinctive (due to their descriptive character) marks even an acquired distinctiveness or an elevate degree of renown cannot cure their original (I called it the genetic) defect, so that the public interest prevents their owners to oppose use of similarly descriptive marks,
2. for marks which were originally non distinctive for reasons others than descriptiveness (like in the case at hand, i.e. three stripes with little or none imaginative content) but have then become distinctive and well known due to the efforts of the TM owner, to deny protection against similar marks (two stripes, four stripes), would frustrate the Directive’s objective and rational, since there is no really public interest in keeping free signs which are per sè incapable to communicate to the consumers the origin or the qualities of the goods and services.
If confirmed by the ECJ the impact of this opinion may be a blow to the enforcement of many originally descriptive trademarks which have lately become well known through intense use and promotional investments and which now will see the possibility to oppose other similar marks severely curtailed. On the other hand, figurative marks and arbitrary marks should see the extent of protections quite enlarged.
The facts underlying the case are fairly straightforward. Adidas is famous for its three-stripe trademarks and owns many registered trademarks in this respect. When it became aware that several clothing companies were using a two-stripe pattern, it sought a court order to prevent them from marketing clothing with the three-stripe pattern or a similar pattern, such as the two-stripe pattern. The Dutch Court of Appeal decided that because of the repute of the three-stripe mark, its scope of protection was broad. Although initially the mark was not very distinctive, it had acquired distinctiveness through use.
However, the Court of Appeal also stated that the broad scope of protection did not mean that other stripe patterns fell within this scope. To that end, it stated that such patterns are common and should be available for third parties. Adidas appealed from this judgment to the Dutch Supreme Court, essentially disputing the role assigned by the Court of Appeal to the public interest. The Supreme Court decided that clarification from the ECJ was required and submitted a request for a preliminary ruling on three questions, the most important of which is whether or not the public interest (in not unduly restricting the use of certain signs by competitors) should influence the scope of protection of a trade mark that was not distinctive ab initio or that was strictly descriptive, but has acquired distinctiveness through use.
The AG’s opinion starts by recognizing that as a matter of law a sign that lacks distinctive character, can nevertheless acquire distinctiveness through use. Such a sign can therefore become a valid trade mark, able to denote the origin of products and/or services. However, this may come into conflict with the German based theory of "Freihältebedürfnis" (the need to keep certain signs free for use by all) which was already examined by the ECJ in its famous Chiemsee decision (cases C‑108/97 e C‑109/98, Windsurfing Chiemsee of May 4, 1999).
The AG declines to give a straight answer to the compatibility of the Freihältebedürfnis with EU law, but essentially denies that Freihältebedürfnis may be applied across the board. For the AG, there is a difference between non distinctive marks by reason of descriptiveness (i.e. when the sign falls into art. 3(1) (c) of the Directive) and non distinctive marks for other reasons (i.e. when the sign falls into 3(1) (b)). While the for the former no matter what, the TM owner cannot really expect to own a concept, for the latter, the efforts of the owner to “characterize” its mark and make the consumer aware of the nature of mark of a certain non originally distinctive mark should not be parasitized by third parties and accordingly Freihältebedürfnis should only apply to originally descriptive marks.
United Kingdom - a new fast track service for trade mark
United Kingdom - The UK-IPO recently announced the launch of a new fast track service for trade mark applications and a new version of the online patent filing system
The United Kingdom Intellectual Property Office (UK-IPO) recently introduced new services for the filing of patents and trade marks. They are particularly relevant for European small and medium enterprises (SMEs) that plan to protect their IP rights in the UK.
First of all, UK-IPO announced the launch of a new fast track service for trade mark applications, which provides quick registration of a trade mark. The new service will become operational on 6th April 2008.
At the same time, UK-IPO launched a new improved version of the online patent filing system, which allows users to request an online certified copy of patent applications, provide information about late declarations of priority and request entry of an international patent application into the UK national phase. Over the next few months further enhancements in the online services are expected
The United Kingdom Intellectual Property Office (UK-IPO) recently introduced new services for the filing of patents and trade marks. They are particularly relevant for European small and medium enterprises (SMEs) that plan to protect their IP rights in the UK.
First of all, UK-IPO announced the launch of a new fast track service for trade mark applications, which provides quick registration of a trade mark. The new service will become operational on 6th April 2008.
At the same time, UK-IPO launched a new improved version of the online patent filing system, which allows users to request an online certified copy of patent applications, provide information about late declarations of priority and request entry of an international patent application into the UK national phase. Over the next few months further enhancements in the online services are expected
domenica 13 gennaio 2008
EU design agreement
EU joins Hague design agreement The European Union's membership of the Geneva Act of the Hague Agreement dealing with the international registration of industrial designs became operational on 1 January 2008.Joining the Hague process for designs allows companies, with a single application, to obtain protection not only throughout the EU with the Community Design, but also in the countries which are members of the Geneva Act. The process aims to simplify procedures, reduce the costs for international protection and make administration easier.Membership follows the EC's submission of its instrument of accession to the World Intellectual Property Organization (WIPO) in Geneva on 24 September 2007. This establishes a link between the Geneva Act of the Hague Agreement system, which is administered by WIPO, and the Community design system administered by the OHIM.
Iscriviti a:
Post (Atom)