IP In The News – 14 August 2015

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Summary: Our regular update on developments in the world of IP, this week featuring an EU case confirming that playing a radio in a bar amounts to a communication to the public for the purposes of copyright infringement and a case concerning a Community Trade Mark for The Ukulele Orchestra of Great Britain.

Communication to the public and copyright


The ECJ has confirmed that playing a radio in a bar amounts to a communication to the public for the purposes of copyright infringement. The public was a “new public” not contemplated by the rights owners because they would only have envisaged the radio being listened to in private by individuals and their families, rather than by everyone in a bar (the Douros Bar case).

Acquired distinctiveness and community trade marks


In a case concerning a Community Trade Mark for The Ukulele Orchestra of Great Britain, the judge decided that the mark was descriptive to the English speaking average consumer, both in the UK and elsewhere in the EU. In an unsuccessful attempt to overcome that challenge by arguing that the mark had acquired distinctiveness in the EU, the judge held that in such cases the mark would need to have acquired distinctiveness in Member States in which English is either spoken as a mother tongue or is an official language (UK, the Republic of Ireland and Malta), where English is sufficiently well spoken by the average consumer for the descriptive character of the word mark to be perceived (likely to mean the Netherlands, Sweden, Denmark, Finland and Cyprus) and further Member States in which the English word or words of the CTM are sufficiently similar to their equivalents in that language for the average consumer who speaks that language to perceive the descriptive character of the word mark.

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