Posts Tagged: "European Union"

Brexit has been postponed and will not now happen at midnight on March 29, 2019.The UK’s House of Commons has twice voted against the Withdrawal Agreement and Political Declaration, which were agreed between the UK Government and the European Union in November 2018. It is not clear at this stage whether Members of Parliament (MPs) will support the Agreement if and when it is put before them again. The UK Government updated its guidance on IP and Brexit on March 22 2019.The most important point for IP rights holders is that on Brexit day, whenever that is, unitary EU rights (notably EU trademarks and registered Community designs) will cease to cover the UK, unless there is an agreement to the contrary.

Have European Union legislators finally agreed on the substance of a new Copyright Directive? That was the claim made in a statement by the European Commission on February 13. The Commission announced that it, the EU Council (which represents member state governments) and the European Parliament (comprising 751 elected members) had reached a “breakthrough” on controversial proposals that have been hotly debated for the past six years. The Commission explained that the three bodies had found a “political agreement to make the copyright rules fit for [the] digital era in Europe and bring tangible benefits to all creative sectors, the press, researchers, educators, cultural heritage institutions, and citizens”. However, it did not publish the text that had been agreed.

This week on Capitol Hill is another light one in terms of hearings focusing on topics related to technology and innovation. Although the House of Representatives is in session all week after the Columbus Day holiday, there are no hearings scheduled for the week as of Sunday,  and the House is about to enter a few weeks’ worth of district work periods. In the Senate, the Commerce Committee convenes a hearing to look at recent consumer data privacy laws passed in Europe and California, and the Banking Committee explores the potential of blockchain and cryptocurrencies in the national financial system.

The WHOIS database provides technical information about the date of creation and expiration of a domain, as well as contact information for the registrant of a website, including name, physical address, email address, and phone numbers. GoDaddy and WHOIS.com appear to have selectively redacted the information only for registrants providing an EU contact address. However, given the difficultly of determining which domain owners are EU citizens, many registrars, such as Tucows, removed data for all domains regardless of where the registrant is located. In light of this WHOIS blackout, the GDPR has effectively made it easier for counterfeiters and infringers to evade detection.

With the June 9 deadline for national implementation fast approaching, we surveyed colleagues in our other European offices to check the state of play in their jurisdiction. The picture which emerged was mixed. Much progress has been made towards national implementation of the Directive in the UK, Italy, France, The Netherlands, Denmark, Sweden, and Hungary. Implementation in these jurisdictions is expected on or around the June 9 deadline. Work is also underway in Poland and Finland, but it’s possible that implementation could slip a few months past the deadline. Slightly further behind are Spain, Belgium, and the Czech Republic. Germany is currently lagging behind as the recent political deadlock surrounding the formation of the new government has delayed the legislative agenda, although a draft bill has been promised for the first half of 2018.

The European Commission has recently proposed new tax rules that would significantly alter the tax regime faced by technology companies operating in the European Union, including American tech giants like Google and Facebook. The proposal from European authorities would tax tech company revenues in the country where those revenues are generated rather than where the companies are regionally located; supporters of the proposal note that this would keep tech companies from reducing tax payments by locating regional headquarters in European nations with lower tax levels.

It has been a big last couple of years for the European Union in the political and business spectrums; what with Brexit and changes to the cybersecurity paradigm. The latter, in particular, will see even bigger changes once the European Union’s General Data Protection Regulation (GDPR) becomes instantiated into law. The scope of this initiative is as broad as it comes, and will alter how business is done in technology, cybersecurity, marketing and even human resources… GDPR takes measures to ensure that EU citizens have individual rights exceeding any claims made by any company that deals with collecting, processing or storing their data; as such, there are guidelines that cover how an organization should properly track all such information in order to facilitate compliance checks.

It has been a long time coming, but the General Data Protection Regulation (GDPR) is almost here. This new privacy regulation requires substantial changes to the collection and storage of data and will affect multiple disciplines, including the brand protection industry. One of the ‘victims’ of the new law is the WHOIS database. How will these changes affect its records?

The European Union suffers from an investment deficit relative to other industrialized nations. A recent report by the European Commission emphasizes this impact, “the EU needs to put in place better incentives and conditions for businesses to innovate” in important areas such as market regulations, intellectual property rights protection, barriers to entrepreneurship, and ease of doing business. Given this, encouraging investment is essential to future growth. Weakening the IP incentives embedded in SPCs would be a step in the wrong direction.

First, I predict that the United States Supreme Court will find post grant procedures under the America Invents Act to be unconstitutional. It is my belief they took Oil States not as a patent case, but rather as an Administrative State case, and if that is correct this could be the first in a series of decisions over a number of years that will pull authority back from the growing Administrative State and toward the Judiciary. Second, in the event the Supreme Court does not declare post grant challenges unconstitutional, I predict the new USPTO Director will substantially modify PTAB rules and procedures, making them more fair and balanced. Third, again assuming my first prediction is incorrect, I predict the PTAB will continue to ignore Eleventh Amendment immunity and will likewise rule Indian Tribes do not deserve to claim sovereign immunity when in front of the PTAB. This will set up a showdown at the Federal Circuit that will ultimately be settled by the Supreme Court, likely in 2019. Finally, I predict there will be continued discussion about patent reform, with the conversation becoming increasingly pro-patent as Members of Congress continue to see undeniable proof that the U.S. patent system is regressing while the patent systems of the EU and China are on the rise. More specifically, I predict that the U.S. will fall out of the top 10 for patent protection in the annual Chamber IP Index, which will send a shockwave through the Capitol.

In the absence of a discernable IP policy, America achieved leadership through laws and courts that supported inventors, and commerce, and that encouraged risk-taking. But the world is now flatter than we could have imagined. If America hopes to remain at the innovation forefront, it needs to rely not only on the ingenuity of its inventors and creators, but on the leadership and vision of government and businesses… Despite the incredible success of several Internet companies — and, some believe, because of it — U.S. IP dominance is in quantifiable decline. Compounding the problem is China, which is now able and willing to fill the void. It has been widely reported that China is a better place than the U.S. and most other nations to obtain patent injunctions and receive a fair hearing in court. Despite this, many U.S. businesses and consumers, impatient with IP rights and cavalier about the impact of IP theft, have come to act with much same attitude the Chinese did before they learned better.

As of September 1, 2017, the Association Agreement between the European Union and Ukraine came fully into force. For three years Ukrainian legislative and executive authorities were obligated to implement the provisions of the Agreement in the national legislation, however much has not been done… With the Agreement in force without implementing Ukrainian legislation companies can approach the interpretation of European and national law in two ways. Competing companies can, and likely will, differ in their approach to and interpretation of certain provisions and they will have to fight their disputes in court.

The General Court of the Court of Justice of the European Union (CJEU) has dismissed an appeal from the unsuccessful application by Arrigo Cipriani (Arrigo) to have Hotel Cipriani’s EU trade mark (EUTM) for CIPRIANI, registered for hotel services among other things, declared invalid on the grounds that (i) it was registered in bad faith and (ii) that, under national Italian law, Arrigo had a prior right to that name… The CJEU affirmed the test for bad faith and the principle that extending the protection of a national mark by registering an EUTM is part of an undertaking’s normal commercial strategy. The fact that the Registrant had an earlier, identical national mark, which Arrigo did not oppose or object to, contributed to the finding that there was no bad faith. In any case, bad faith remains a high threshold to prove and if owners have EU national rights, which were never challenged by the invalidity applicant, this could further add to the difficulty of proving bad faith by the registrant.

The news headlines are becoming ever more populated with stories of big brands trying and failing in some instances to register a trade mark for their product. Lindt infamously failed to register their signature gold foiled chocolate bunny in Germany, similarly Rubiks lost its bid to register the EU trademark for the puzzle. The latest addition to this string of companies was Nestlé who attempted and failed to register the KitKat design. Nestlé’s application for trade mark registration failed on the ground that the four finger chocolate bar design was not distinctive enough. This raises the question in the world of intellectual property law as to just what will surpass the trade mark test, and indeed what this test consists of within the UK.

This new e-Privacy Regulation, if adopted, will replace the current e-Privacy Directive and will establish, together with the General Data Protection Regulation, GDPR, a new privacy legal framework for electronic communications. The proposal aims to be lex specialis to the GDPR. Probably to ensure consistency with the new privacy legal framework for electronic communications, the entry into force provision of the leaked text has been amended to state expressly that the e-Privacy Regulation will come into force on the same date as the GDPR (25 May 2018). With many legislative hurdles still remaining before it is approved, this represents an ambitious timeline for EU legislators.