AG Saugmandsgaard Øe provides guidance on the application of EU competition law in the pharmaceutical sector

On 21 September Advocate General Saugmandsgaard Øe provided his Opinion to the CJEU on some key issues regarding competition law in the pharmaceutical sector. The request for a preliminary ruling was referred by the Italian Supreme Administrative Court (“Consiglio di Stato”) in relation to a cartel case where the Italian Competition Authority (“ICA”) fined Roche and Novartis for a total amount of 180 million euros.

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Excessive use of online information collected on third parties’ websites amounts to unfair competition – rules the Shanghai IP Court in the Hantao v. Baidu case in China

Never has information on the internet been as interconnected as it is today. Thanks to the so-called web scraping technology, in which computer programs are used to extract information from different websites, online platforms are able to incorporate related information from different sources into a single webpage so that users can find and utilize desired information in a convenient way. However, the legality to use information collected by others deserves cautious examination, and unfair competition law is one of the aspects to be considered.

In September, the Shanghai Intellectual Property Court issued a second-instance judgment in Hantao v. Baidu case, laying out useful guidelines for assessing whether unauthorized use of information collected by others constitutes an act of unfair competition. Continue reading “Excessive use of online information collected on third parties’ websites amounts to unfair competition – rules the Shanghai IP Court in the Hantao v. Baidu case in China”

International IP Exhaustion and the Judgment of the Supreme Court of the United States in Impression v. Lexmark

Setting the Stage – IP Exhaustion

IP rights are neither perpetual nor limitless. In fact, IP rights are inter alia limited in scope, duration and by express exceptions. A sometimes forgotten limitation of IP rights is exhaustion, or the “first sale doctrine”, which is the name it bears in the U.S.

In essence, the IP right related to a certain article is considered to be exhausted once it has been sold with the consent of the IP holder. From a geographical perspective, two alternative principles (leading to very different outcomes) can be distinguished. The first one is national exhaustion, which entails that only a sale of an article within the relevant national territory would exhaust the IP right. According to a second principle, such territorial distinction is not recognized, i.e., a sale anywhere in the world can exhaust the IP right (international exhaustion).

In the U.S., the United States Court of Appeals for the Federal Circuit (Federal Circuit) as well as the Supreme Court of the United States (SCOTUS) have considered the question of exhaustion from many different perspectives in their earlier judgments. In this article, I will discuss the judgment of the SCOTUS in a quite recent case regarding exhaustion, Impression v. Lexmark. The judgment was handed down on 30 May 2017.

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“Colour” your rights or not?

Guest post by Florica Rus*

Over the years, many companies have sought trade mark protection for colours or colour combinations. This strategy turned out to be not a plain sailing.

Since Libertel – C-104/01 and Heidelberger Bauchemie – C-49/02 judgments, colours are recognised as a factor that may lead consumers to a purchasing decision. However, colours are considered to have a limited capacity to communicate an indication of origin to the consumers and being distinctive is not their strength.

On 22 July 2017, the General Court held that three identical rectangular coloured stripes do not make the mark distinctive enough to fulfil the commercial origin function (T-612/15). The figurative mark applied for – EUTM 012880481 (three stripes colour) for goods in classes 18, 25 and 26, was found to be neither distinctive nor to have acquired distinctiveness through use. The Court illustrated that consumers in the fashion sector are not used to identify the origin of the product based on a colour and three coloured stripes will not be apprehended as an indicator of origin. Continue reading ““Colour” your rights or not?”