Thursday 17 December 2015

EPO - Letters to the Administrative Council

The Administrative Council (AC) of the EPO has met yesterday and continues its meeting today. The IPKat reports on four remarkable letters which have been sent to the AC in preparation of the meeting, wherein the stakeholders note that the acceptance of the EPO's proposal to reform the Boards of Appeal have has been (wilfully?) overstated when President Batistelli has presented the results of the user consultation in CA 98/15. The move to directly address the AC rather than relying on the president as the spokesperson is a clear sign of increasing mistrust between the president and the boards of appeal.

The recent discussion and events have shown that a reform aiming at increasing the perception of independence of the Boards of Appeal has to avoid any direct or indirect influence of the president of the office on the management of the Boards of Appeal. As correctly stated in the long-awaited letter of epi to the AC, the President should abstain from exercising control on the appointment or re-appointment of the board members and on the budget of the Boards of Appeal.

Above all, this blogger concurs with the epi in that the complete recruitment stop has to be removed immediately to keep the Boards Operational and to avoid a further increasing backlog. Operational Boards of Appeal with independent, experienced and motivated members, sufficient rooms to hold oral proceedings and staff support are a core ingredient of the functioning of the European Patent System to be administered by the AC.  

Tuesday 1 December 2015

Dressing up as Pippi Longstocking is not unfair, either

In a case reported here, the right-holders of the work of Astrid Lindgren had sued a supermarket offering carnival costumes of the literary figure of Pippi Longstocking for infringement of copyright and unfair competition.  The alleged acts of infringement included distributing a prospectus with models being dressed with the costume.

According to the case-law, the utilization of work products of third parties is generally allowable but can be considered unfair if specific circumstances appear to justify this finding.

The action had been dismissed by the BGH insofar as copyright was concerned and had been remitted to the 2nd instance (OLG) to re-assess the claims based on competition law. The OLG found that the pictures with the models could be considered to be an imitation in the sense of § 4 Nr. 9 Buchst. a und b UWG but rejected these claims because no specific circumstances rendering the imitation unfair were recognizable.

The case went back to the BGH which confirmed the result but for different reasons. According to the BGH, the imitation of a character of a novel by transferring features having features of competitive individual character into other product classes as this is the case for carnival costumes is possible but must not be assessed based on low requirements ("keine geringen Anforderungen"). In the case at issue, the overlap between the features characterizing the literary figure of Pippi Longstocking and the design of the carnival costume is sufficiently small to exclude an imitation.

This applies to alleged imitations the character in the novel as such and is without prejudice to the claims based on unfair imitation of actual merchandizing products offered by the right-holder.

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