What makes an Electronic Communications Service? (Part 2)

On 13 June 2019, the Court of Justice of the European Union (“CJEU“) published its ruling on the classification of Gmail in the EU following a request for a preliminary ruling from the German Courts. Gmail is a web-based email service, and is a type of “Over-The-Top” (“OTT”) service.

The CJEU determined that Gmail is not an electronic communications service (“ECS”), as defined in the Framework Directive (Directive 2002/21/EC, as amended) – i.e. a service consisting mainly or wholly of the conveyance of signals. As a result, Gmail should not be subject to various telecommunications regulatory obligations in the EU, including registration/notification (depending on the national regime), payment of administrative fees, security, and consumer protection measures such as minimum contract terms and transparency requirements. Continue Reading

Digital Copyright Directive published…and already the subject of complaint

The Directive on Copyright in the Digital Single Market (the Directive), has now been published in the Official Journal, and entered into force on Friday 7 June 2019.

EU member states have two years in which to transpose the Directive (which is now officially Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC). Continue Reading

The Government Does Not Have Standing to Challenge Patents Under the Leahy-Smith America Invents Act (AIA)

The U.S. Supreme Court issued a 6-3 decision on June 10, 2019 holding that the Government was not a “person” capable of instituting one of the three AIA patent review proceeding described below.  This holding overturned a prior decision by Court of Appeals for the Federal Circuit (Federal Circuit) in favor of the United States Postal Service (USPS) that the Government was a “person” eligible to petition for a covered business method (CBM) review. Continue Reading

ATB Sales Limited v Rich Energy: A ‘Staggering’ Use of Court time?

The recent judgment in ATB Sales Limited v Rich Energy Limited [2019] EWHC 1207 (IPEC) illustrates the difficulties parties will have in defending copyright infringement claims over artistic works, if they can only provide limited documentary proof of the creative design process.

Background

ATB Sales Limited (“Claimant”) brought the action against three Defendants: Rich Energy Limited (“First Defendant”); Mr William Stoney, the director and sole shareholder of the First Defendant (“Second Defendant”); and Mr Sean Kelly, the chief designer of the First Defendant’s logo (“Third Defendant”).

The dispute centred on the design of the First Defendant’s logo, which the Claimant alleged was copied from the whole, or a substantial part, of its logo. Furthermore, the Claimant argued that the First Defendant’s use of the logo on products for sale, as well as its use in promotional, advertising and marketing materials infringed the Claimant’s copyright, under sections 17, 18 and 20 of the Copyright, Designs and Patents Act 1988 (the “Act”). Continue Reading

What makes an Electronic Communications Service?

On 5 June 2019, the Court of Justice of the EU (CJEU) published its ruling on the classification of SkypeOut in the EU following a request for a preliminary ruling from the Belgian Courts. Skype is a Voice over IP service (VoIP) and the ‘SkypeOut’ component is an interconnected VoIP service that allows the service to dial out to landline and mobile numbers.

The CJEU determined that the SkypeOut service is an electronic communications service (ECS), as defined in the Framework Directive (Directive 2002/21/EC, as amended). As a result, SkypeOut should be considered a regulated telecommunications service and therefore subject to various regulatory obligations in the EU, including registration/notification (depending on the national regime), payment of administrative fees, security, and consumer protection measures such as minimum contract terms and transparency requirements. Continue Reading

Check In On Your Terms

  The Competition & Markets Authority (CMA) has recently launched its “Small Print, Big Difference” campaign which encourages travel businesses to be upfront and clear with consumer customers.

Although the campaign has been launched with a holiday and travel focus (following the CMA’s investigation into online hotel booking websites), and is supported by ABTA, many of the requirements will also apply to other consumer facing businesses.

A question of fairness

 The Consumer Rights Act 2015 requires that contract terms and notices used by businesses in transactions with consumers are fair. Generally, contract terms are unfair if they put the customer at an unfair disadvantage.

If a term isn’t fair, it will not be legally binding on a customer. Businesses also risk the CMA and other bodies taking enforcement action to stop the use of a term or notice which is considered unfair. Continue Reading

Federal Circuit Affirms that Likelihood of Confusion – not “Use in Commerce” – is the Hallmark of Trademark Infringement

In VersaTop Support Sys., LLC v. Ga. Expo, Inc., 2019 U.S. App. LEXIS 11404 (Fed. Cir.  Apr. 19, 2019), the Federal Circuit turned its eye to the Trademark Statute and reaffirmed that the cornerstone of an infringement action under the Lanham Act – with or without “use in commerce” as that term is defined in Section 1127 (Section 45 of the Lanham Act) – is the likelihood of confusion. Continue Reading

Recognizably Influential

Squire Patton Boggs’ partner, and one of the editors of this blog, Tamara Fraizer has been named as one of the most influential women in IP by World Intellectual Property Review.

Tamara has been recognised for her expertise across the life sciences, consumer healthcare and pharmaceutical industries (amongst others) as one of the 80 most prominent female lawyers, alongside attorneys, solicitors, barristers and other practitioners from around the world.

Congratulations Tamara – we couldn’t be more proud!

 

Supreme Court Resolves Bankruptcy Circuit Split in Favor of Trademark Licensees

The Supreme Court’s decision today in Mission Product Holdings, Inc. v. Tempnology LLC resolved longstanding uncertainty at the intersection of trademark and bankruptcy law.  In particular, the Court determined whether the rejection of a trademark license in a bankruptcy case deprives the trademark licensee of its rights under the license for which it had likely paid a lot of money.  Continue Reading

The future is…female sports sponsorship

With womens’ sporting events becoming increasingly popular with tv and live action crowds, brands searching for new sports sponsorship opportunities are turning to womens’ sports.

Squire Patton Boggs’ Sports Shorts blog considered the advantages of such deals for brands in a recent post, which also looks at some high value sponsorships in the area.

 

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