IP Snapshot - April 2012

Bringing you regular news of key developments in intellectual property law.

TRADE MARKS

Génesis Seguros Generales Sociedad Anónima de Seguros y Reaseguros v Boys Toys SA, Administración del Estado, Case C-190/10, 22 March 2012

The Court of Justice of the European Union (CJEU) has considered the meaning of the "date of filing" of a Community Trade Mark (CTM) and found that CTM Regulation effectively precludes the hour and minute of the filing of a CTM application from being taken into account under national law for the purposes of establishing the CTM's priority over a national trade mark filed on the same day. The CJEU found that the actual time of the filing is irrelevant for assessing priority, even though it is possible for the time of filing to be ascertained where the application has been filed electronically and held that it is the date of receipt which matters. This would be the case even where the national legislation governing the registration of national trade marks specifically considered the hour and minute of filing to be relevant in this regard. For the full text of the decision, click here

COPYRIGHT

Società Consortile Fonografici (SCF) v Marco Del Corso, Case C-135/10, 15 March 2012

The CJEU has considered a reference for a preliminary ruling from the Italian courts as to what constitutes a "communication to the public" of a sound recording under Article 8(2) of the Rental Directive, under which compensation should be paid if a sound recording is used for any communication to the public, and in the context of Article 3(1) of the Copyright Directive. The CJEU held on the facts in question that (i) patients in a dentist's surgery generally formed a very consistent group of persons and were therefore not 'persons in general'; (ii) the number of people to whom the broadcast was made audible was insignificant; (iii) the broadcast was unlikely to have an impact on the number of patients the dentist had; (iv) patients visited a dental practice with the sole objective of receiving dental treatment; and (v) the broadcasting of phonograms was in no way part of dental treatment. The court therefore found that it could not be presumed that the usual customers of a dentist were receptive as regards the broadcast in question and that there was no communication to the public in these circumstances. For the full text of the decision, click here Phonographic Performance (Ireland) Ltd v Ireland and another, Case C-162/10, 15 March 2012 Using the criteria that it had set out in SCF (above), the CJEU has held that hotel operators who provide televisions or radios in guest rooms to which they distribute a broadcast signal, are 'users' making a 'communication to the public' under Article 8(2) of the Rental Directive of any recordings played in the broadcast, and are required to pay equitable remuneration, in addition to that paid by the broadcaster.

The ruling confirms the findings of the CJEU in 2006 in Case C-306/05 Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SL which stated that communication by means of television sets to which is fed a signal initially received by the hotel constitutes communication to the public within the meaning of Article 3(1) of the Rental Directive, but departed from the decision in...