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Pankhuri Malik is an IPilogue Writer and an LLM Candidate at Osgoode Hall Law School.

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The IPilogue reported in September 2021 that with , the Unified Patent Court (“UPC”) may become a reality by 2022. Now, on January 19, 2022, became the 13^th Member State to ratify the Agreement, clarifying the timeline for the UPC. Austria’s ratification triggered the protocol’s and kicked off the Provisional Application Period (“PAP”).

The PAP is expected to last anywhere between eight and twelve months, subject to the time required to finish the preparatory arrangements for the UPC to commence operations. While Germany has enabling legislation for the UPC, its ratification is yet to be officially communicated. It is expected that once the Member States are with the preparations for the UPC, Germany will deposit its instrument of ratification.

, the EU patent regime requires the patentee to have its patent (granted by the European Patent Office) validated in the Member States individually. Thereafter, any claim of infringement and/or invalidity is required to be prosecuted through separate legal proceedings in all nation states. The UPC, through its agreement to set a single and specialized patent regime, with its accompanying regulations, consolidates the national patents into a streamlined process. Under the UPC, innovators will be able to enforce their patents in a single court. Similarly, invalidation proceedings will also be adjudicated upon in the UPC, removing the need for parties to prosecute their patent rights individually in all member countries. Further, the cost of renewal of one UPC patent is expected to be equivalent to roughly the sum of national renewals in the top four EU countries.

At the moment, the UPC has 25 signatories and 16 Member States, including Austria, have ratified it. Once Germany’s ratification document is received, the UPC will commence from the after receipt of the document. This could happen as early as September 2022. The UPC is expected to commence operations in .

At the moment, since the practicalities of the UPC are still unknown, it is understandable that innovators may be apprehensive to avail the jurisdiction of the UPC immediately. The Agreement therefore provides for an “opt-out” period. In other words, innovators may be able to avail one of the :

1. Proceed under the jurisdiction of the UPC;
2. Opt out of the jurisdiction of the UPC and continue to avail patent rights under the regime in place; or
3. Opt for a hybrid system, where an existing European patent may be validated under the UPC and separately through national validation in non-Member States.

As of now, this transition period is only valid for seven years, and is further extendable by another seven, after review at the five-year mark.

The work to prepare for the commencement of operations of the UPC is being conducted by the (“Committee”). The Committee is comprised of all Member States to the Agreement, and its accompanying regulations. At the outset, the Committee is undertaking work under 5 broad heads:

1. The legal framework;
2. Financials;
3. Information technology;
4. Infrastructure; and
5. Human Resources.

However, the Committee is a short-lived endeavour and will only survive for as long as preparatory works are still underway.

Under Article 24 of the Agreement, the UPC will on Union Law, the UPC Agreement signed by the Member States, the Convention on the Grant of European Patents, and other international agreements applicable to patents and binding on the Member States. Alongside, the UPC will also take national law into consideration.�� Under the hybrid system mentioned above, any existing patent rights that may be validated under the UPC will continue to be governed by national laws.

Now that the UPC has become a reality, almost a decade after it was first conceptualized, it is expected that the European patent landscape will drastically change. For one, the holistic costs of securing patent protection in the EU are projected to drop by almost %. Similarly, the timeline for securing a patent and litigating its infringement and validity is also expected to significantly drop. All in all, with the removal of administrative barriers to securing patent protection, we should expect to see a substantive increase in patent applications in the EU.

The post One World, One Patent: The Unified Patent Court Becomes a Reality! appeared first on IPOsgoode.

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Tugce Kucukali is an IPilogue Writer and incoming LL.M. Candidate at University of British Columbia.

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requires genuine use of a trademark to maintain registration. Lack of use may cancel a trademark’s registration; as well, any oppositions based on a trademark without genuine use may not withstand a non-usage defense.������������������������������������������������

Trademark owners have a grace period of five years to abstain from this obligation. Refilling a trademark is a method for extending this period. Thus, the repeated registration of a trademark can help an owner to circumvent their obligation to prove genuine use.

Hasbro v EUIPO

In , the well-known toy brand Hasbro tried to register the “Monopoly” word mark. In 1998, the “Monopoly” mark was registered for computer, software, electrical, and scientific products (class 9), clothing and apparel products (class 25), and toys and sporting goods products (class 28). By applications made in 2008 and 2010, trademark protection was granted respectively for the education and entertainment services (class 41) and paper and printed material products (class 16). In 2010, a trademark application covering goods and services in classes 9, 16, 28 and 41 was made and subsequently registered in 2011.

Hasbro relied on their trademark to oppose the “Drinkopoly” word mark. As a defense, the owner of the Drinkopoly mark, Kreativni Događaji, claimed that the 2010 Monopoly registration was filed in bad faith and must be invalidated. In 2015, Događaji’s invalidation claim was brought before While the Cancellation Division of the EUIPO rejected the request, the Appeal Board in 2019 held that Hasbro’s trademark application was partially filed in bad faith, particularly for the goods and services that are within the scope of the previous registrations. In April 2021, ) the Appeal Board’s decision.

The that since Hasbro repeated the registration to avoid having to prove usage, the registration is deemed as in bad faith. Bad faith was detected by a Hasbro executive’s statements at the hearings before the Appeal Board. They indicated that the refilling of a trademark is also beneficial to avoid several administrative burdens. Even though Hasbro claimed that it prefers to degrade its trademarks to one, the Court disagreed with this argument since none of the previous trademarks were withdrawn.

Of significance, the Court also pointed out that Hasbro’s applications are atypical. However, the Court emphasized that even though the present case does not conform with the common pattern, Hasbro’s applications are intended to extend the grace period of five years in an artificial and fraudulent way.

It should be noted that bad faith was accepted only for the goods and services that were already covered within the scope of the previous registrations. Bad faith is not precisely defined in European trademark law and its examination must be conducted on a case-by-case basis. Such cases where bad faith is partially accepted are exceptional.

Refilling the same trademark is not legally prohibited and this practice does not constitute bad faith per se. The precedents of the General Court and the EUIPO have accepted various objectives for refilling. For instance, , the Court considered the applications to modernize the logos. , the owner applied to expand the goods and services covered by the trademark. Perhaps if the font or the goods and services list of the “Monopoly” mark changed, the EUIPO and the CJEU would have reached a different conclusion.

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Ali Mesbahian is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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It is now an unfortunate truism that we are all subjects of perpetual surveillance. The legal infrastructure that sustains and enables this Orwellian dystopia is undoubtedly overwhelming and discouraging for those seeking change. But victories are also possible; the two Schrems cases, discussed below, are an example. Yet, these cases also point to the need for a more or less uniform legal order for data governance.

Schrems I

In 2015, Austrian law student and privacy activist, Maximillian Schrems, sued Facebook Ireland for what he alleged to be an . Schrems’ claimed that the U.S. mass-surveillance program renders it unable to provide an of personal data (PD). The EU Data Protection Directive (95/46/EC) imposes this requirement on countries outside of the EU. While Canada passed the in order to meet this requirement, the U.S. negotiated the with the EU; a self-certification scheme that allows U.S. organizations receiving information from the EU to attest that they adhere to EU data and human rights laws.

Schrems challenged the Safe Harbour Agreement, which passed the muster of the European Commission (EC) in . The EC is the executive branch of the EU that, among other things, . However, following Edward Snowden’s , there could be no doubt as to the “generalized basis” by which the US government collects and stores citizens’ data, which the Court of Justice of the European Union (CJEU), Europe’s highest court, found to “.” This decision, which came to be known as Schrems I, ultimately invalidated the Safe Harbour Agreement.

Schrems II

While the initial decision was a victory for Schrems, it later turned out that Facebook was not relying on the Safe Harbour Agreement, but on the ). These clauses, also passed by the EC, .” Compelled to revise his challenge in 2015, Schrems alleged that contractual arrangements in the U.S. legal regime cannot adequately protect PD because, among other things, U.S. law to the U.S. National Security Agency (NSA) and the Federal Bureau of Investigation pursuant to . In the meantime, following the invalidation of the Safe Harbour Agreement, the U.S. and the EU negotiated another self-certification scheme for U.S. companies called the Privacy Shield Agreement, which the EC in 2016.

In the , released in July 2020, the CJEU once again invalidated a EC adequacy decision, this time invalidating the Privacy Shield Agreement because it does not contemplate sufficient avenues for individuals to bring an action against the government for unlawful surveillance. The CJEU ultimately agreed with Schrems that the U.S. legal system, , does not provide “essentially equivalent” protection of data as EU law. Thus, while the CJEU in Schrems II held that SCCs may provide “effective mechanisms” for the protection of transferred PD pursuant to EU law, including the passed in 2018, it also emphasized that SCCs do not bind public authorities of data-receiving countries. In other words, the U.S. government is not a party to SCC contracts between data importers and individuals, leaving its vast surveillance apparatus unrestrained.

Implications of Schrems

Schrems II confirms the CJEU’s stance against mass-surveillance. But while a victory for privacy, the decision also creates a web of uncertainty; for now, s.” This impossibility has raised concerns in the health industry, of which

It is too soon to evaluate the implications of the Schrems II decision, given that the EC just released on June 4, 2021. provisions into standardized contracts for the international transfer of data. With the invalidation of both the Safe Harbour Agreement and the Privacy Shield Agreement, we are left with the discrepancy between rigorous data protection laws in one jurisdiction (i.e., the EU), and a lax legal order with respect to surveillance in the other: an incoordination that significantly withholds the benefits associated with international data flow.

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Tugce Kucukali is an IPilogue Writer and incoming LL.M. Candidate at University of British Columbia.

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On 19 April 2019, and adopted . June 7, 2021 was the deadline for the member states to enact their national laws in accordance with the Directive. On June 7th, through efforts by some member states, in particular Poland, an annulment action was commenced claiming that Article 17(4) of the Directive violated freedom of expression (). The Directive was also not received positively by the European Union.

According to EU law, “directives” provide more flexibility to the member states than “regulations” because member states base their own national laws on directives. The European Parliament and Council’s decision to adopt directives on copyright law, as opposed to regulations, is consistent with the dynamic character of copyright law. Although the legal text provides legislative freedom to the member states, the Directive has been heavily criticized.

Articles 3 and 4 of the Directive, introduce text and data mining as a new copyright law exception. Article 15 sets forth the rights of the press , and Articles 18-22 regulate the rights of content creators.

The Highly-Debated Article 17

Article 17 places more burdens on online content sharing service providers than the current EU copyright law does. The E-Commerce Directive is at the core of current debates. Although the given definitions restrict the Directive’s scope, its proposed content monitoring obligations are stricter than those currently in place.

Service providers should put their “best efforts” to not only license the content shared on their websites, but also prevent the reuploading of content banned by notice and takedown procedures. Even though national laws require due diligence obligations of diverse scopes, each nation’s laws and practice will ascertain the meaning of the “best efforts”.

Article 17’s copyright exceptions are also problematic. CJEU case law has designated criteria for several exceptions; however, the criteria have no clear and decided definitions. Indeed, the CJEU needs time to set forth requirements. Member States may interpret the Directive in accordance with CJEU case law to some extent while transposing it into their own national laws. Service providers must also monitor content on a case-by-case basis to determine whether it meets the exceptions criteria.

The major concern about the Directive is the overly strict banning of content service providers due to the strict obligations placed on them. When considering the scope of the service provided by intermediaries, unfortunately, such cautious approach will not be limited to the EU. One of the main goals of copyright law is to protect freedom of expression and promote creativity. The proposed means can hardly achieve these goals. Consequently, the European Commission has tried to eliminate certain ambiguities by publishing the .

What the Member States Have Done

While for further administrative implementations, the Netherlands and Hungary . Germany, Austria, and Finland each have their draft texts. France into the . However the debate around Article 17 continues. Most member states’ texts have been criticized for their word-for-word adhesion to the Directive.

On July 15, the Advocate General’s opinion will be published on the annulment action initiated by Poland. Following the Commission Guidance, the opinion will provide more certainty regarding Article 17 and instruct each member state as distinct from national draft laws. While the CJEU is coping with the work overload caused by copyright cases, the case initiated by Poland surely will not be the last case to discuss the Directive. More troublesome instances of the Directive’s implementation are likely ahead of us.

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Photo Credit: Banksy (https://www.flickr.com/photos/major_clanger/4894673199)

Tugce Kucukali is an IPilogue Writer and incoming LL.M Candidate at University of British Columbia.

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Under , a trademark registration filed in bad faith may be subject to a request to invalidate the trademark. However, since the term “bad faith” is not precisely defined in EU law, bad faith is identified by assessing the facts of each case. In several decisions released in April, the Court of Justice of the European Union (CJEU) and the European Union Intellectual Property Office (EUIPO) made evidentiary assessments regarding bad faith and the purpose of interfering with the registration of famous persons’ names and works.

France Agro v EUIPO - Chafay (Choumicha Saveurs)

The trademark registration for the “Choumicha Saveurs” mark was by the General Court of the CJEU in light of the reputation of Choumicha Chafay, better known as Choumicha. When assessing bad faith, the Court considered Choumicha's line of business, the goods covered by the application, and the fact that the applicant company's manager is Moroccan.

Choumicha argued that while she does not possess rights to her brand or trade name in the EU, she is well-recognized in France and commercially uses her brand, the Choumicha mark, and her image in Morocco. Specifically, the Moroccan community in Belgium and France have known Choumicha as a chef since the 2000s. The applicant, who used an Arabic word in the trademark to target the Arab-speaking community in Europe, undoubtedly knew her reputation ��at the time of application. Even the goods under the impugned trademark relate to the culinary industry.

Banksy’s Laugh Now Trademark

One of Banksy’s works, registered as a figurative trademark, was subject to an . As emphasized in , a known example of trademark filing in bad faith is to file an application without intending to use the trademark.

Banksy's anonymity hinders the copyright protection for his works of art. The trademark owner, the company presumed to be Banksy’s legal representative, argued that the filing has the legitimate objective of securing the rights granted through copyright protection. However, the applications filed lacked the necessary purpose of using the trademarked goods and services and additionally, trademark law is not meant to substitute copyright protection. Banksy's attitude towards intellectual property rights is well-known; the ruling cited a quote from Banksy’s book, ‘Wall and Piece’, where he remarked “copyright is for losers.” Although the EUIPO stated that his attitude does not preclude Banksy of claiming his rights, it is relevant by showing Banksy’s intention for filing the trademark.

In recent years, Banksy has permitted third parties to use his works for non-commercial purposes. However, the EUIPO disagreed with the trademark owner that Banksy reserved the right to use his works for commercial purposes. In addition, Banksy has not taken any legal action against such uses by giving consent or negotiating licenses, and no serious trademark use by him was identified prior to the application date.

',” Banksy said in 2019 in a notable UK publication, as quoted by the decision. Even though a trademark application may be deemed as an indication of a will to use the trademark, statements like these undermine that intention. Thus, the EUIPO concluded that the trademark registration was made to circumvent the law rather than to use it for commercial purposes.

The Future of Bad Faith

In both decisions, the assessments concerning the trademark applicant’s intent were made by the factual evaluation of the statements and circumstances relevant to the application. A statement made years ago or the applicant’s background could form the basis for the bad faith assessment. Although each assertion of bad faith is decided on a case-by-case basis, these recent decisions can instruct the EU Member States as they navigate EU trademark law.

The post Is Trademark for Losers? appeared first on IPOsgoode.

Across the world, policy makers in national governments, private sector and civil society, increasingly recognize the importance of small and medium-sized enterprises (SMEs) in the private sector as engines of sustainable national economic growth, job creation and exports. As a result, creating a suitable enabling economic environment for the growth of SMEs has become a key policy focus in most countries. SMEs make significant contributions to productive investments, meaningful job creation, value-added exports and eventually to the overall socio-economic growth and development of countries. A lot still remains to be done to ensure that the SMEs are fully equipped to benefit from the new opportunities and to deal effectively with the challenges posed by the quickening pace of globalization and the digital revolution that is radically transforming the way industry and business are run. This new situation highlights the importance of knowledge management, management of the intangible digital content, comprising of information, data, knowledge or intellectual assets, as never before in the evolving history of industry and business worldwide.

In the European Union, SMEs represent 99% of enterprises, excluding the non-agricultural market sectors and they provide gainful employment to more than 100 million people, which constitutes two thirds of the private sector work force and generate almost two thirds of the total turnover of all non-agricultural market sectors.

In Asia and the Pacific region, SMEs account for 90% of enterprises and provide 32% to 40% of employment. SMEs also contribute from 60% to 80% of GDP in individual Asia/Pacific economies.

In the United States of America, employment in Fortune 500 companies continues to drop.

In Latin America, SMEs make up more than 98% of enterprises and employ more than 80% of the work force.

In Africa, it can be surmised that SMEs make up more than 90% of all business and employ a substantial number of people, especially in urban areas.

SMEs therefore, are at the heart of the economic well being of most nations and any action aimed at enhancing their competitiveness has the potential of not only securing existing jobs and creating new ones, but also of creating, owning and sharing the fruits of economic wealth by the majority of the population in every country and thereby improving the quality of the lives of the majority in every country. IPwe have developed a key free AI tool that could be used to achieve this goal the Paradigm Report, at the moment we are focused on EUSMEs however there is no reason why this AI cannot benefit any SME, anywhere in the world.

As I mentioned earlier ninety-nine percent of all companies in the European Union are small or medium enterprises (SMEs). These SMEs provide two-thirds of private sector jobs and contribute more than half of the total added value created by all businesses in the EU. Despite many initiatives to increase the competitiveness of SMEs, enable better access to finance and increase commercial opportunities, EU SMEs are still failing to attract significant investment from the financial markets and missing out on commercial opportunities.

SMEs consistently highlight access to finance as one of the most pressing problems adversely affecting their business activity. Some progress has been made in improving the availability of financing and credit for SMEs through the provision of loans, guarantees and venture capital, but access to finance is still the greatest obstacle faced by individual SMEs. Enterprise-level companies searching for commercial partners have no way to quickly identify the most innovative SMEs within a particular industry based on verified information.

One of the biggest roadblocks that innovative SMEs face in gaining access to finance and commercial partners is the difficulty that commercial and financial partners have in identifying those exceptional and innovative SMEs.

Large enterprises face the flip side of that challenge: it’s hard to identify the most innovative SMEs that would present excellent opportunities for strategic commercial partnerships which could benefit both firms.

IPwe Paradigm is revolutionizing this by making it easy to identify highly innovative SMEs for potential commercial and financial partners.

There are several well-known facts that and have identified about SMEs and intellectual property (IP)1:

• SMEs are the backbone of the European economy
• SMEs with IP are significantly more likely to experience growth and even become high growth firms (HGFs)
• Patent filings perform best as HGF predictors in both high-tech and low-tech industries and trademark filings perform best in consumer durable industries
• SMEs that have bundles of IP (patents, trademarks and other IP assets) are even more likely to achieve high growth.

Using game-changing technologies such as artificial intelligence (AI) and blockchain, IPwe has created an IP profile for EU SMEs that is publicly accessible and free. Each profile highlights the IPwe Paradigm Score which is an algorithmic-based score of the competitive strength of the SME’s patent portfolio within its industry.

IPwe uses a proprietary method of assessing the quality of the SME’s verified patent assets held in the EU, along with other important factors such as the commercialization and monetization potential of those assets and recent technology trends in global markets.

Read the full article .

Alexander Weir is a Business Mentor for Prince's Trust in the UK. He has a BA Hons in Politics from the University of Hull and a Master of Laws from NYU in IP, Innovation and Information Technology.

The post Creating Global Opportunities for Innovative SMEs: IPwe Verified IP Asset Profiles and Ratings for EU SMEs appeared first on IPOsgoode.

After Professor David Vaver’s light hearted introduction of Professor Dinwoodie’s long list of accomplishments and status as a “force of intellectual property internationally”, Professor Dinwoodie began his talk. He opened his lecture by indicating that his talk was part of a��working project on examining the dynamics of IP law in America, and��comparing whether the same dynamics existed in European IP law. Professor Dinwoodie proposed that a cardinal principle of IP law is that it is territorial, and it has always been that way even within the international systems since the late 19th century.�� However, global trade and social changes along with the creation of the online marketplace have called into question the practical relevance of this territoriality principle.�� There is a growing gap between the global reach of trade and the local nature of IP law, and what should be of interest to us is how we respond to this gap between the social reality and the legal principle of territoriality.

Professor Dinwoodie then put forth the question of whether we should reconfigure the legal principle of territoriality to comport with today’s commercial reality. He noted one approach worth paying attention to: the Community Trade Mark (“CTM”) created by the European Union (“EU”) about twenty years ago. The CTM allows European producers to try and adapt their trademark rights from a national basis to a regional basis, and has been mimicked, whether adopted or considered, around the world – for example, among the Russian commonwealth of independent states, by groupings of African countries - both French-speaking and English-speaking countries,�� a trans-Tasman mark for Australia and New Zealand , and a group of Portuguese speaking countries considering a��‘Lusófona’ mark. Professor Dinwoodie then said that this evolution in the approach to trademarks suggests that trademarks could be understood to have a connection to culture and language, and not necessarily solely territory as traditionally accepted by IP law. The room then pondered whether cross-country trademarks like the CTM would work here in North America – perhaps something like a “NAFTA” mark?

We were then presented with the three different dimensions to territoriality that would inform the rest of Professor Dinwoodie’s talk. Professor Dinwoodie suggested that territoriality could be understood as: (i) territorial laws (the applicable legal norms), (ii) territorial rights (the acquisition of trademarks and the scope of those rights), and (iii) territorial actions (such as issues regarding jurisdiction and relief). Consequently, Professor Dinwoodie noted that these three different aspects of territoriality each create unique problems for trademark law, with each requiring unique solutions.

To illustrate this argument Professor Dinwoodie began in the realm of American IP law, using cases like , and to demonstrate how the US has created two different conceptions of territoriality with respect to trademarks. Professor Dinwoodie suggested that there is both a political purpose (deriving from registration systems stemming from the territorial character of political institutions) and an intrinsic purpose (the defining of trademark rights by referencing the geographic reach of a mark’s goodwill) of American trademark law.

From there Professor Dinwoodie took us to Europe where we discussed the directive to harmonize legal norms and regulate through unitary rights as attempted by European trademark law. ��We explored in further detail the nature of the CTM and the importance of distinctiveness in trademark protection. I thought it was very interesting how in Europe a mark must be distinctive on all relevant grounds, in that a similar mark cannot exist anywhere else in Europe. This means that an application for an English mark could be defeated by the existence of a similar mark in Greece. Furthermore, marks in Europe cannot be descriptive – a secondary meaning must be shown in every country where there is a distinctiveness problem. In other words, if there is a problem with a mark in any part of the EU the applicant must be able to resolve the problem in each country where the issue lies (see ). Therefore, although the EU has tried with the CTM to create one trademark region, in reality the needs and challenges of twenty-eight separate territories must be satisfied in order for a trademark application to be successful. Trademark law in the EU is therefore not a total picture, but rather a puzzle – and if one piece is missing the image remains incomplete.

Professor Dinwoodie continued his talk with further discussions of the unitary character of the CTM in Europe, from dilution protection based upon reputation (as applied in ), to genuine use (see ). We then came to the issue of the scope of injunctive relief in regards to a CTM violation. As Professor Dinwoodie explained, if an infringement of a CTM is found an injunction for the infringing act is supposed to be put in place for the whole of the EU. However using French, English, and Dutch cases to demonstrate the different approaches to granting relief I found myself agreeing with Professor Dinwoodie’s proposition that the unitary market is a legal fiction in the EU that does not exist in fact. Professor Dinwoodie’s analysis demonstrated that the intrinsic territorial nature of a trademark’s reputation tends to restrict the political grant of EU-wide relief that is meant to occur.

Two main lessons were given to the room to think about in the final moments of the talk. Firstly, Professor Dinwoodie suggested that the value of remedial flexibility in preserving local markets might grow as political units enlarge. Secondly, he said that the dangers of a gap between the market and trademark law lie in reform that both forces change too quickly and reform that fails to keep up with changes in the market. As such, other approaches to territoriality and trademarks that are connected to the intrinsic territoriality of marks might closer align with our social and commercial reality. Professor Dinwoodie proposed that the EU should consider American systems such��as remedial flexibility and the use of disclaimers to avoid the issue of multiple trademark conflicts across the EU’s large regional area. Professor Dinwoodie then wrapped up his remarks by saying that while countries consider whether they should mimic the CTM in their own regions they must think about whether territoriality is best configured by a top-down political approach or if there are forces tied to the actual scope of goodwill that allows for a definition of territoriality that is not too far from the reality of the markets.

The lecture finished off with questions from the room – from Professor Vaver’s questioning of Professor Dinwoodie’s seemingly “cut and dry” comparison between intrinsic territoriality and political territoriality, to a question about the major problems countries may face setting up a model similar to the CTM. The entire experience was both engaging and informative as someone who is not familiar with the international conversations regarding trademark law. Admittedly, I had never considered trademark issues outside the borders of one country but Professor Dinwoodie brought to light many of the issues a global marketplace has created for IP law. As our world continues to expand and connect it is true that the law cannot remain confined within the boundaries of territorial lines – these lines have become more fluid and the law must flow as well.

Jaimie Franks is an IPilogue editor and a JD Candidate at Osgoode Hall Law School.

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The European Commission today welcomed the publication of a study on Intellectual Property Rights, which was carried out jointly by the European Patent Office (EPO) and the Office for Harmonization in the Internal Market (OHIM). This study, “Intellectual Property Rights intensive industries: contribution to economic performance and employment in Europe” (September 2013), measures the importance of Intellectual Property (IP) rights in the EU economy. Key findings of the study are that about 39% of total economic activity in the EU (worth some €4.7 trillion annually) is generated by IPR-intensive industries, and approximately 26% of all employment in the EU (56 million jobs) is provided directly by these industries, while a further 9% of jobs in the EU stems indirectly from IPR-intensive industries. to read more.

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Cybercrime is a growing global problem that no company or country can tackle alone. At any given time, an estimated 150��000 viruses and other types of malicious code are circulating across the internet, infecting more than a million people every day.

Anti-virus software developer McAfee counts 75 million unique pieces of malicious malware code on its databases, with botnets spewing out spam that account for a third of all the emails sent every day. Bots are one of the most sophisticated and popular types of cybercrime today. They allow hackers to take control of many computers at a time, and turn them into “zombie” computers, which operate as part of a powerful “botnet” to spread viruses, generate spam, and commit other types of online crime and fraud. The worldwide cost of cybercrime is estimated at over €750 billion annually in wasted time, lost business opportunities and the expense of fixing problems.

In addition to developing wider cybersecurity strategies for Europe, the European Commission takes concrete actions to tackle cyber security risks, and pools resources with national governments, industry, universities and NGOs, to develop innovative technologies to improve cybersecurity.

For the period 2007-2013, the European Commission has spent about €350 million in cyber security research; from 2013 to 2020, €400 million is earmarked to support key enabling & industrial technologies such as cyber security, privacy and trust technologies, and an additional €450 million is earmarked for ‘Secure Societies’ research which includes aspects of cybersecurity.

The following EU-funded projects address the big issues facing cybersecurity: cost, speed and long-term security; helping to keep computer users one step ahead of the hackers, Trojans and viruses plaguing the online world today.��to read more.

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In��, The High Court Chancery Division of England, reasons given by the Honourable Judge Birss QC, held that����(the colour purple) was sufficiently regarded by the public as associated with Cadbury chocolate to register the colour as a��.�� The protection, after some discussion of the Court, would be limited to Pantone 2685C associated with the wares:��“Milk chocolate in bar and tablet form; milk chocolate for eating; drinking chocolate; preparations for making drinking chocolate” ().�� In the decision, Judge Birss QC acknowledged that colours are registrable trade-marks in the European system under the Art. 2 definition ().�� What makes this decision surprising is that a former decision was reached in Australia in 2006 which came to the opposite conclusion.

��(No 4) [2006] was a passing off action decided in the Australian Federal Court. ��The Honourable Justice Heerey, in giving reasons for judgement, concluded that Cadbury did not have any rights in the colour purple because they lacked the exclusive reputation of using purple in connection with chocolate.

Why the apparent discrepancy between these two decisions?�� One likely explanation is that the courts in these two cases were provided with different evidence.�� For example in the��, it was pointed out that Nestlé, chief competitor to Cadbury, uses a dark purple colour, similar to that of Cadbury’s, in their chocolate product packaging. In the��, it was pointed out that Cadbury had been using the colour purple on its product packaging since 1914, and the opponent Nestlé accepted the finding��that Cadbury's purple mark was distinctive.�� Perhaps the Pantone 2685C was a sufficiently narrow colour for Cadbury to prove that they had distinguished themselves from Nestlé.�� But whatever the reason, the court in the UK decision was clear that a colour is registrable under the EU system, provided it had a distinct reputation in a class of goods.

Has protection of marks become too broad, with the inclusion of simple colours, to ensure fair competition?�� The UK Cadbury decision is not the first time a distinctive colour has been registered as a mark.�� For example, in��., the US Supreme Court held that a colour on its own does fit within the defined limits of marks which can be registered under the US Lanham Act.�� The difficulty in registering a colour as a mark appears to be convincing a court that your mark has a distinct reputation in connection with the goods sold.

Take the Cadbury case as an example, the court recognized that Cadbury did not have the kind of reputation necessary to protect the colour purple in connections with all their products.�� That is why the court limited the class of goods that would receive this protection to “Milk chocolate in bar and tablet form; milk chocolate for eating; drinking chocolate; preparations for making drinking chocolate”.�� The court also recognized that Cadbury was asking for the protection regarding a very specific shade of purple (), which opponent Nestlé conceded was distinctive of Cadbury.�� In addition to the limited shade, Cadbury further had to identify that the colour was “applied to the whole visible surface, or being the predominant colour applied to the whole visible surface, of the packaging of the goods” ().�� Therefore their protection is limited to a particular shade, applied predominantly on packaging of specific chocolate products.

Since the scope of that protection is extremely narrow, I think that it is difficult to assert that this kind of protection is unfair. Applicants trying to register colours as marks will have to prove that the colour is distinctive��of the goods being applied for (see IP Osgoode's coverage of��).�� The evidentiary burden on potential registrants appears to be high enough to limit colour trade-marks to the few applicants that will be capable of proving a colour’s��distinctiveness to their wares. ��If they can do that, on what grounds do we reject registration? ��I think that so long as the colours protected remain specific and apply only to a very limited scope of goods, the system of trade-mark protections is not abused by registering colours as marks.

Adam Stevenson is a JD Candidate of Western University, faculty of law.

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