Reposted from Sports. Media and Entertainment Online

By Alexis Fierens and Raf Schoefs  

Under Belgian law, a copyrighted work may be used without the authorisation of the author(s) for the purposes of caricature, parody or pastiche. In the absence of any clear guidance on the interpretation of the concept of parody and considering the economic value of many copyrighted works of which the integrity is carefully guarded by their rights holders, parodies have been the subject of many legal proceedings, leading to divergent decisions. For that reason, a clarification of the concept of ‘parody’ by the European Court of Justice of the European Union (“CJEU”) has been long awaited.


Continue Reading CJEU Clarifies Scope of Exception for Parody: Not Just Joking Around

By John Wilks

This year’s conference of Marques, the European brand owners’ association, took place in the European Union’s most troubled and ancient capital, Athens, under the lamentably resonant strapline “Sign of the Times”.  Among the many interesting topics shoe-horned under this banner, one theme seemed to keep resurfacing: the challenge of locating internet infringers.

This is by no means a new problem: IP infringers have for obvious reasons always sought to cover their tracks.  But the advent and continuing expansion of the internet and social media have dramatically increased the scope for anonymous infringements from cyberspace.  The impending arrival of over 1,000 new gTLDs- including many for common generic terms, threatens to further expand the possibility for anonymous infringement.


Continue Reading PARTNER’S PERSPECTIVE: RE: MARQUES, AND THE PERENNIAL PROBLEM OF FINDING INFRINGERS

Reposted from DLA Piper’s Law à la Mode Edition 4 – Winter 2011

By:  Michael K. Barron, Sarah Phillips and Nadea Taylor (Boston and London)
“AdWords,” the paid, subscription-based Google referencing service which allows users to advertise their companies alongside Google search results, has recently been the subject of much legal scrutiny.  In late September, the European Court of Justice (ECJ) gave a preliminary ruling on questions referred to it by the English High Court in the case between Interflora and Marks & Spencer (“M&S”), regarding the purchase by M&S of the Google AdWord “Interflora” and other similar AdWords. 
In answering the questions referred to it, the ECJ repeated much of the recent jurisprudence in this area, in particular from the Google France case.  Previous cases established that purchasing a third parties’ trademark as an AdWord would only amount to trademark infringement if such use would have an adverse effect on one of the functions of the trademark.  
The ECJ gave the following guidance on how national courts should assess whether the use by a third party of a sign identical with a trademark in relation to identical goods or services has an adverse affect on one of the functions of the trademark:

By: Stefania Baldazzi and Annalaura Avanzi  (Milan)

In 1967, the well-known Italian fashion designer Elio Fiorucci founded the fashion brand Fiorucci S.p.A.  After more than two decades of success in Italy and around the world, Mr. Fiorucci sold the company and all of its creative assets to the Tokyo Company Edwin Co. Ltd in 1990.  The sale encompassed all the Fiorucci trademarks, including numerous marks containing the element “FIORUCCI.”

In 1999, Edwin Co. registered the mark “ELIO FIORUCCI,” by filing an application with the Office for Harmonization for the Internal Market (OHIM), which is a body of the European Commission, for a broad category of goods, including cosmetics, apparel, footwear and leather products. 


Continue Reading Edwin Co. v. Elio Fiorucci: Designer and Company Share a Name?

By Siân Croxon, Partner, DLA Piper UK

The CJEU has provided some clarification of the law on when EU customs officials can seize counterfeit goods that are merely in transit through the EU. 

The story began in 2008 when a consignment of Nokia branded mobile phones arrived in Heathrow in transit from China to Colombia.  The customs officer was suspicious and sent a sample to Nokia for inspection which duly revealed that the phones were indeed counterfeit.


Continue Reading “Just passing through sir or really stopping off?” – the CJEU rules on counterfeit goods in transit

Reprinted from La A La Mode, DLA Piper’s Fashion, Retail and Design E-zine

by Louis Puts (Brussels)

Online marketplaces such as auction sites are often used as platforms for selling unlawful fashion products. On 12 July, 2011, the CJEU rendered an important decision concerning the unlawful offers of cosmetic products with L’Oréal’s trademarks on eBay. For the first time, the decision has clarified the circumstances under which online marketplace operators may be held responsible for unlawful trade-marked products offered for sale on their platform site, under trade-mark law, the E-Commerce and the IP Enforcement Directives.


Continue Reading ONLINE MARKET PLACES RESPONSIBLE FOR TRADEMARK INFRINGEMENTS

Reprinted from La A La Mode, DLA Piper’s Fashion, Retail and Design E-zine

by Jean-Louis Kerrels and Julie De Bruyn (Brussels)

On June 23, the European Parliament adopted the Consumer Rights Directive.* Among the changes is a 14 day EU-wide right for consumers to change their mind about their online purchases, as well as new information requirements.


Continue Reading NEW CONSUMER RIGHTS DIRECTIVE: 10 COMMANDMENTS FOR ONLINE RETAILERS

DLA PIPER IPT ALERT

By Ruth Hoy and Claire Bennett

Advocate General Bot delivered his Opinion in SAS Institute Inc. -v- World Programming Ltd on 29 November 2011.  The judgment of the full Chamber of the CJEU is not expected until sometime in 2012, and it is not yet known whether the Court will follow his Opinion.  In the meantime, the Opinion gives some useful insight for programmers who are trying to create computer programs that are interoperable with programs of others and studying and testing the functionality of programs.

Advocate General Bot delivered his Opinion in SAS Institute Inc. -v- World Programming Ltd on 29 November 2011.  The judgment of the full Chamber of the CJEU is not expected until sometime in 2012, and it is not yet known whether the Court will follow his Opinion.  In the meantime, the Opinion gives some useful insight for programmers who are trying to create computer programs that are interoperable with programs of others and studying and testing the functionality of programs.


Continue Reading SAS Institute Inc. -v- World Programming Ltd

Reprinted from La A La Mode, DLA Piper’s Fashion, Retail and Design E-zine

by Emma Greenow (Brussels)
http://www.shutterstock.com/pic.mhtml?id=5228836
http://www.shutterstock.com/pic.mhtml?id=80653660
With what can seem to be an overwhelming increase in the quantity and complexity of EU regulation facing the fashion industry, understanding and taking action in this area can seem as if you are navigating a tangled web of issues and stakeholders.
The recent EU regulatory agenda has included policy reviews in relation to the intellectual property framework, the Digital Agenda, Online Behavioural Advertising, Consumer Rights and redress amongst others. Each of these developments has a direct impact on business activities in the fashion industry in Europe and, for this reason, interaction from rightsholders into the creation of the regulatory framework is essential. 
In recognition of this fact, fashion houses and brands are investing heavily in strategic discussions at EU level in order to directly provide input into many of the forthcoming changes. Through enhanced regularised contact with legislators and the provision of timely and helpful advice, all stakeholders are trying to move towards more workable and less cumbersome regulatory obligations for businesses.
An effective example of the need and value of increased dialogue was shown in the drafting of the recent recommendations for Online Behavioural Advertising, where industry, consumer groups and legislators worked together through dialogue to develop a series of best practice principles which all parties supported.  As a result of this process, the contributors may well have diverted a further regulatory burden for all stakeholders.
Following the changes brought about by the Lisbon Treaty, it is vital for all fashion industry participants to engage and input into all 3 key EU institutions, the European Commission, the European Parliament and the Council of the European Union. 
Legislative advocacy by rightsholders can take many forms – from the traditional methods such as meet and greet sessions with key stakeholders, press releases and local media, to the more sophisticated and targeted advocacy including social media campaigns, video messaging and awareness raising. All methods have definite advantages however it is key to know when to link each method into your activities. 
The face of the regulatory framework for the fashion industry is changing rapidly and this trend is likely to continue into 2012 – what is of key importance is your inclusion and input into these forthcoming discussions.

by Emma Greenow (Brussels)

With what can seem to be an overwhelming increase in the quantity and complexity of EU regulation facing the fashion industry, understanding and taking action in this area can seem as if you are navigating a tangled web of issues and stakeholders.

The recent EU regulatory agenda has included policy reviews in relation to the intellectual property framework, the Digital Agenda, Online Behavioural Advertising, Consumer Rights and redress amongst others. Each of these developments has a direct impact on business activities in the fashion industry in Europe and, for this reason, interaction from rightsholders into the creation of the regulatory framework is essential.


Continue Reading ON TREND: EU POLICY MAKING IN BRUSSELS