The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Pavis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Tuesday, 21 November 2017

Around the IP blogs!





The 2017 Black Friday shopping storm will kick off soon. However, the Black Friday battle has already begun in Germany. The dispute circles around a German Black Friday trade mark, the Hong Kong-based owner of the trademark, and its German licensee. In fact, all traces “lead to Vienna”, as media summarized the results of their investigations in this “thriller” – Oliver Löffel (Löffel Abrar) shares his opinion on the case. 


Thomas Hvammen Nicholson (Protector IP Consultants AS) brings a follow up to the blog post of 4 September, regarding Oslo Municipality’s attempt to obtain trade mark protection for the body of works of art of Norwegian artist Gustav Vigeland [also covered by IPKat here]

JIPLP (The weblog of the Journal of Intellectual Property Law and Practice)

Black Friday Kat ...€$€
The Authors' Take:
by L Donald Prutzman 
Tannenbaum Helpern Syracuse & Hirschtritt LLP 

by Tito Rendas 
Universidade Católica Portuguesa – Faculdade de Direito 

The 1709 Blog

As usual, the 1709 blog presents readers the routine collection – THE COPYKAT, which recaps the recent copyright cases/updates all over the world. 


MARQUES has set out its position with regard to Brexit in a nine-page paper which is available to download on its website here

The paper states that Brexit "has the potential to be a material threat to the interests of the significant number of businesses that own and/or rely on valuable trade mark, design and geographical indicator rights protected in the EU". 

MARQUES Class 99 (designs) 

Nominations open for DesignEuropa Awards 2018 

The second edition of the DesignEuropa Awards is now open for nominations and applications. Organised by EUIPO, the DesignEuropa Awards honour outstanding design, designers and businesses that have brought their designs to the marketplace with the protection of the registered Community design (RCD). The Awards take place every two years. The nomination and application period for the DesignEuropa Awards runs from 15 November 2017 until 15 May 2018. 



Photo courtesy of Qi-cheng.

Katcall Reminder

The deadline is approaching
Merpel wants to remind those interested in the openings for GuestKats and InternKats positions (as was announced here) to submit their complete applications by no later than Friday 24 November 2017 (midnight, GMT).

Complete applications must contain CV details, motivation, and a 400-word writing sample (or a link to an existing piece in the case of GuestKats applications). Incomplete applications will not be considered. 

Furthermore, please keep in mind that you need to have your employer’s permission to be part of the IPKat team. 

GuestKats and InternKats will start on 1 January 2018. Previous applicants are encouraged to apply.

Apply here for GuestKats and here for InternKats positions.

Monday, 20 November 2017

EMA relocation: and the winner is...

Voting has been taking place today by EU affairs ministers to decide the forum for the relocation of the European Medicines Agency.  The results are in, and the winner is Amsterdam.

The Dutch have beaten off stiff competition from 18 other candidate cities in a complex voting procedure, where each member state had the same input as any other.  Votes were cast by secret ballot, where it is reported that Milan had 12 votes, Amsterdam 9 and Copenhagen 5.  When Copenhagen was knocked out, its votes went mostly to Amsterdam (feels a bit like Eurovision, no?)
At which point Amsterdam and Milan tied at 13-13.  The final decision was taken by pulling a name out of a hat.   Actually.

So how did Amsterdam do in the EMA's relocation staff retention survey in September 2017?  In summary, Amsterdam received a glowing "green" rating (meaning equal or greater than 65% staff retention).  They also did well for location accessibility and access to labor market, medical care and social security.  Detailed results of that survey can be found here.

The UK will say goodbye to 900 people who are employed by the EMA in London.

Congratulations to our Dutch friends - our loss is your gain!

In memoriam: Azzedine Alaïa, the King of Cling (and what it tells us about the fashion industry)


There is probably no word less apt to be associated with this Kat than “fashion.” That does not keep him from taking an interest in the industry and the larger-than-life figures that populate it. In the fashion world, none was more idiosyncratic about his craft than the late Azzedine Alaïa, who passed away on Saturday at the likely age of 77. His improbable rise to the top, his long-life commitment to the “Sinatra doctrine” –he did things “his way”, and what his life story tells us about the fashion industry, merit recollection by the IPKat.

Alaïa was born in Tunisia, the son of a wheat farmer, an unlikely environment from which to climb the ladder of fashion success. How he left the farm, secured a place at the École des Beaux-Arts in Tunis, found a series of skill-enhancing sewing and clothing-related endeavors in Tunis, leading to his relocation to Paris, is testimony that luck is often central in life, but even more so how one takes advantage of such luck.

Once in Paris, he worked at Dior for a brief time, moving to Guy Laroche [Mrs. Kat reminds that this Kat has some Guy Laroche-branded pants in his closet; maybe he does not give himself enough fashion credit?], and Thierry Mugler, until he set up his own workshop or, as called in Paris, an “atelier”, in a smallish flat in Paris. From there he specialized in discretely designing clothes for the elegant and notable (Greta Garbo was said to have come for his services incognito). Over the years, his customers are reported to have included Grace Jones, Tina Turner, Raquel Welch, Janet Jackson, Naomi Campbell, and Shakira.

Alaïa came to the forefront in the 1980’s; he was the master of designing clothes in a clinging style that earned him the sobriquet, The King of Cling. His ability to do so with leather was the stuff of legend. It is said that anyone could recognize an instance of Alaïa-designed, body-con clothing. All of this took place against the backdrop of his unique view as to how clothing design should be carried out. As noted by The New York Times, he—
"… dedicated his life to belief that fashion was more than just garments; to him, they were as much an element of the empowerment of women and a broader cultural conversation."
Stated otherwise, "[h]e used leather and knits to shape and support the body, transforming it into the best version of itself."

His design approach dovetailed with the rise of the supermodel in the early 1980’s, such as Naomi Campbell (he was notably much shorter than they), which in retrospect was, in a consummate example of a double entendre, a perfect fit (another instance of making his own luck). Vogue.com wrote of his design work for these supermodels as follows:
“Seemingly destined to wear and inspire his clothes, these Amazonian-like heroines were custom-built for a bold era of exaggeration and excess. Not only could they handle the curves of the fast-paced times, but could throw some themselves.”
He did all this while remaining his own man. It began with his usual attire, a black, high-necked Chinese garment. In particular, he was known for not playing by industry rules, whereby one is expected to deliver in accordance with a predetermined schedule. This was not for Alaïa, who would only present when he felt he was ready. It is said that he resisted the expectation to produce collections, this despite his commercial relationship with the Prada group (in 2000) and later with the Richemont group (in 2007). Against that background, Wikipedia reports that Catherine Lardeur, the former editor-in-chief of French Marie Claire, is quoted as saying that—
"Fashion is dead. Designers nowadays do not create anything, they only make clothes so people and the press would talk about them. The real money for designers lie within perfumes and handbags. It is all about image. Alaïa remains the king. He is smart enough to not only care about having people talk about him. He only holds fashion shows when he has something to show, on his own time frame. Even when Prada owned him he remained free and did what he wanted to do."
Whether this is a compliment, a criticism or merely an observation about Alaïa is left for the Kat reader to decide. Surely the tension between creation and commercialization lies at the heart of fashion. Whether or not "fashion is dead" would seem to depend on where one places himself or herself on the continuum between these two competing poles. [This Kat recalls a recent meeting with a young designer, who wanted to hear about what she could do to protect her creations. After an hour of conversation, she looked at this Kat with a sense of resignation, stating that "really all I want to do is design."]

In considering Alaïa, one must also ask: should the fashion designer be measured only in terms of his or her ability to get the most sartorially out of his supermodel client? This Kat discussed a while ago the fashioning challenge in meeting the needs of women who are not models ("The illusion of design and design of illusion"). What was suggested was that a different approach to the fashioning craft is called for. This Kat wonders whether Alaïa, as the King of Cling, should, could and/or would ever have taken part in such a conversation.

Photo on upper right by ellenm1 is licensed under Creative Commons Attribution 2.0 license

Photo on bottom left by Gaz is licensed under GNU Free Documentation license

By Neil Wilkof

Athens Court of Appeal applies CJEU GS Media linking decision and interprets 'profit-making intention' restrictively

Linking after GS Media, available here
Last week, while I was attending the REDA [as Regulation and Enforcement in the Digital Age, not MEP Reda] 2017 Conference in Nicosia (Cyprus), I found out that after Sweden [herehere, and here], Germany [here, here, here, here, and here], the Czech Republic [here], and the UK [here] [have I missed something? Are you aware of other national courts’ decisions on linking? Please let me know!], also a Greek court has had the chance to apply the reasoning of the Court of Justice of the European Union (CJEU) in GS Media, C-160/15 [Katposts here].

The Greek decision is extremely interesting because it contains a rather narrow interpretation of what qualifies as profit-making intention. 

As I also discuss more at length here and here, when one reads the GS Media decision it is not self-evident whether the presence of a profit-making intention should be assessed in relation to the specific act of communication at hand, or the broader context in which such act is performed. Although both alternatives may be plausible, consideration of the context in which the relevant link is provided appears more in line with existing CJEU case law, both preceding and following GS Media

However the Athens Court of Appeal opted for the former as the correct interpretation of the profit-making intention of the defendant/link provider.

Katfriend, fellow blogger (iprights.gr), attorney and post-doc researcher Dr Theodoros Chíou (Dr. Theodoros Chíou & Partners, Intellectual Property and Internet Law Office), explains what happened.

Here's what Theodoros writes:

“A new episode on the pan-European saga of hyperlinking cases is added by the decision No 1909/2017 of the Athens Court of Appeal [a summary in English can be found here]. By applying the CJEU GS Media judgment for the first time in Greece, the court ruled on second instance in the livemovies.gr case and offered some insights on the determination of the profit-making character underlying the provision of relevant hyperlinks.

Background

The website www.livemovies.gr (no longer active) was an online inventory for, mainly, Greek TV series episodes, TV programmes and films. The website contained several hyperlinks (deep-links) that directed users to third-party websites and usually (but not always) towards rightholders’ websites or other official web locations (such as official YouTube channels), where the works were freely available for online streaming, without any technical or other restrictions (paywall or others).

The major Greek collecting society in the music sector (AEPI) made several attempts to conclude a licence for the communication to the public of musical works through the website. However, in response to that, the administrator of the website filed an action against AEPI, in order to, among others, have judicially recognized the absence of any licensing obligation for the website’s activity.

The Multi-Person Court of First Instance of Athens (Polimeles Protodikio Athinon, decision no 5249/2014) [already reported and commented on this blog] sided with the administrator’s request, and held that, on the basis of the Svensson decision [Katposts here], the mere provision of hyperlinks to freely available protected works does not constitute a new act of communication to the public (thus: no licence is needed and no copyright infringement is involved), and that is so irrespective of the lawful or unlawful character of the initial communication. 

Both the administrator of the website and AEPI appealed the first instance decision to the Athens Court of Appeal.

livemovies.gr when it was still active
The decision

The Court of Appeal confirmed the conclusion of the appealed decision (and rejected both appeals) and concluded that the posting of hyperlinks would not be an act of communication to the public. As a consequence, the administrator of the website did not had the obligation to obtain licensing and pay the relevant remuneration for such linking activity.

The Court rooted its decision within a different reasoning than the one used in the appealed decision, by making reference not only to CJEU decisions in Svensson and Bestwater [here] but also GS Media (the decisions in Filmspeler [Kartposts here] and Ziggo [Katposts here] had yet to be issued at the time when the Athens Court of Appeal's ruling was published).

The judgment was based on the following findings (the original order of argumentation is kept):

-       No primary liability detected: “As it has been proved, the plaintiff, as administrator of the website, had not stored on a server nor had provided the possibility for users visiting his website to watch audiovisual works that contained musical works […]. The user, after selecting the desired work from the website’s archive, was redirected through a hyperlink to a third-party website, where free access to the work was available.” 
-       The requirement of new publichas not been met: “Moreover, it was not the case of bringing new public to these third-party websites, but about free accessing of users [to the freely available targeted works], without technical or other restrictions.”  
-       No awareness of the unlawfulness of initial communication: As it has been proved, the plaintiff did not know and could not have known whether the third-party websites, to which the user was redirecting to […] had obtained a lawful licence from the respective authors and representative organisations for the transmission of such works
-       No profit-making purpose of hyperlinking:  But even in the very few cases where the websites, to which the user was redirected to through the use of hyperlinks, had not obtained a lawful licence, the plaintiff has not acted with profit-making intention, since it has been established neither any involvement of the plaintiff in these third-party websites nor reception of any profits generated from the unauthorised transmission of protected works.

The homepage of livemovies.gr today
Comment

A prima facie observation that should be underlined is the inversion of the GS Media assessment criteria. In fact, the court examined the knowledge criterion first and then the for-profit character underlying the provision of hyperlinks. However, according to the GS Media judgment, the pursuit of financial gain is the first determination that has to be made, before assessing the knowledge factor.

The most interesting part of the decision resides in the interpretation of the profit-making character. Indeed, the Court seems to ascertain the pursuit of financial gain in the context of hyperlinking in two cases: a) where the hyperlink provider is involved (under a scheme whatsoever) in the targeted transmission and b) where the hyperlink provider makes profit that derives from the unauthorized transmission of works per se.

According to this approach, a distinction should be made between, on the one hand, the profits made by the hyperlink provider that are connected to the (unauthorized) retransmission of targeted works and, on the other hand, the profits generated from the provision of hyperlinks as such, within the framework of the operation of the website. 

As a consequence, the criterion of the pursuit of financial gain by the linker, as introduced by the GS Media decision, should be satisfied only in the former case and not in the latter. 

This means, among others, that the mere lucrative character of a website that provides hyperlinks (e.g. because of ad revenues) would not amount to a pursuit of financial gain.

This is definitely a restrictive interpretation of the GS Media ruling, especially if one takes into account the circumstances of the case, where the main objective of the website was to provide hyperlinks, while several advertisements banners figured therein.”

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