If you missed Part 1 and are wondering what it's all about, just click here.
5. The Unified Patent Court and Unitary Patent Court system
|Without a "Unified Patent Court" logo yet, the|
AmeriKat is left depicting the story with EU flag
|Louboutin's red sole (left), |
Yves Saint Laurent's shoe(right), the AmeriKat's shoe rack
The CJEU also ruled that if operators of an internet marketplace, like eBay, enable customers to display on its website infringing signs corresponding to trade marks, operators are not “using” the trade marks for the purposes of trade mark infringement under Article 5(1)(a) of the Directive 89/104 and Article 9(1)(a) of Regulation No 40/94. However, when operators provide assistance to users in optimizing or promoting such users' online offers for sale which use infringing marks then operators are playing an “active role”. The Court ruled that operators who play such an "active role" or who are aware of facts or circumstances that point to online offers for sale being unlawful and do not act promptly to remove it (a sort of “red flag test”) cannot benefit from the exemption of under Article 14(1) of Directive 2000/31 (the E-Commerce Directive).
All-in-all, the CJEU’s decision appeared to be bad news for eBay. However, the IPKat noted at the time that it did not think that the case would result in an avalanche of litigation against eBay. The mere risk of litigation itself and the costly exercises of avoiding “active role” type services that trigger liability where counterfeit users are concerned, while not alienating its non-infringing users who use such services, may be the true cost of the decision (the age-old internet liability dance of "not knowing about infringement without being wilfully blind to the infringement, see one of the US's top stories in the Viacom and YouTube case here). The Court’s ruling has yet to be applied by Mr Justice Arnold.
The BBC’s press release seemed to introduce a new quasi-public interest defence for copyright law and avoided mentioning s.30(2) Copyright Patents and Designs Act (CDPA). The AmeriKat believes there is a certain amount of sympathy to be had for the BBC’s position in instances where the reporting of breaking news events does not permit time for the required permission/attribution undertakings. Nevertheless, the position under UK law is clear. The story again highlighted the relatively new difficulty encountered by owners and users of intellectual property on social media platforms, but reinforced the centuries-old legal difficulty that lies in the intersection between copyright law and freedom of speech.
1. The European Patent Office
2. UK’s Intellectual Office
3. The Office for Harmonisation in the Internal Market (OHIM)
1. United Kingdom
2. United States
|The Solomon Islands - location|
of the next IPKat retreat?