Some recent and interesting IT&IP cases from Luxemburg.

• Pierre Fabre Dermo-Cosmétique C‑439/09. This relatively unknown decision is actually one of the most important developments of the competition law when it comes to the internet. With AG prof. Mazák, Third Chamber of the Court of Justice held that Article 101(1) TFEU must be interpreted as meaning that, in the context of a selective distribution system, a contractual clause requiring sales of cosmetics and personal care products to be made in a physical space where a qualified pharmacist must be present, resulting in a ban on the use of the internet for those sales, amounts to a restriction by object within the meaning of that provision where, following an individual and specific examination of the content and objective of that contractual clause and the legal and economic context of which it forms a part, it is apparent that, having regard to the properties of the products at issue, that clause is not objectively justified. In other words, if you can not objectively justify the non-internet sale clause, you risk the trouble with CJEU 🙂

• Brüstle C-34/10. This widely reported patent case created fuss around all the blogs and newspapers Huťko reads and it even messed up Huťko’s friends PhD thesis (dirty CJEU! :)). Grand Chamber of Court of Justice held that exclusion from patentability concerning the use of human embryos for industrial or commercial purposes also covers the use of human embryos for purposes of scientific research, only use for therapeutic or diagnostic purposes which are applied to the human embryo and are useful to it being patentable. CJEU also explained what he believes is human embryo within the meaning of Directive 98/44/EC. Best covered by IPKat as usually.

• Freixenet v OHIM C-344/10 P and C-345/10 P. The case concerns registration of two three-dimensional trade marks representing a frosted white bottle and a frosted black matt bottle from the perspective of distinctive character of a sign. CJEU didn’t invent anything new and just confirmed that trade marks consisting of the appearance of the product itself or the packaging of goods, such as liquids, which are packaged in trade for reasons linked to the very nature of the product, also applies where, as in the present case, the trade mark for which registration is sought is an ‘other’ mark consisting of the specific appearance of the surface of the packaging of a liquid product. In such a case, the mark likewise does not consist of a sign that is independent of the appearance of the necessary packaging of the products it designates. Some good coverage is provided at Marques blog.

• Couture Tech v. OHIM T-232/10. Very interesting case interpreting notion of accepted principles of morality. General Court held that application for a figurative sign that includes hammer and sickle and five-point red star would be contrary to principles of morality in some certain member states. Interestingly GC mentioned only Latvia, Czech republic and Hungary. Huťko wonders why?

• Bang & Olufsen v OHIM T-508/08. This is Huťko’s favorite because it concerns very rare application of Article 7(1)(e)(iii), i.e. sign which consists exclusively of the shape which gives substantial value to the goods (one of the functional exclusion for trade mark registrations). This exclusion is very important because once established, it can not be overcame by acquired distinctive character. The aim is therefore to prevent the exclusive and permanent right which a trade mark confers from serving to extend the life of other rights which the legislature has sought to make subject to ‘limited periods’ (such as design or copyright protection) – see para 65. Eight Chamber of General Court refused registration of the unique shape of loudspeaker as a trade mark on the basis of Article 7(1)(e)(iii). It held that for the goods at issue, the design is an element which will be very important in the consumer’s choice even if the consumer also takes other characteristics of the goods at issue into account. Indeed, the shape for which registration was sought reveals a very specific design and the applicant itself admits, at paragraph 92 of the application in particular, that that design is an essential element of its branding and increases the appeal of the product at issue, that is to say, its value. Furthermore, it is apparent from the evidence referred to at point 33 of the contested decision, namely extracts from distributors’ websites and on-line auction or second-hand websites, that the aesthetic characteristics of that shape are emphasised first and that the shape is perceived as a kind of pure, slender, timeless sculpture for music reproduction, which makes it an important selling point. .. It must be added that the fact that the shape is considered to give substantial value to the goods does not preclude other characteristics of the goods, such as the technical qualities here, from also conferring considerable value on the goods at issue (see para 73 to 77 of the judgement).