Outlook for 2019 and "Happy New Year"

We are looking forward to next year’s judgments and to taking a look at the most recent references for a preliminary ruling of the European Court of Justice in the coming year. Important judgments from the entire spectrum of patent and trademark law await us.

Figurative mark or colour mark – differences in distinctiveness?

A figurative mark may not be registered as a colour mark at all – but there are clear differences in the distinctiveness of figurative and colour marks. This preliminary ruling is the next decisive ruling in the border area between the colour mark and the figurative mark after the sensational years of trademark dispute over the red sole of the famous Louboutin shoes, which ended successfully for Louboutin this summer.

Reference for a preliminary ruling from the Finnish court in the Oy Hartwell case

Lack of distinctive character of a trade mark: #darferdas

The interesting reference for a preliminary ruling also revolves around the trade mark #darferdas and the indication of origin in clothing. Is a sign distinctive where there are practically significant and obvious ways of using it as an indication of origin for the goods or services, even if that is not the most likely way of using the sign?

Reference for a preliminary ruling from the BGH

SPC for new formulation of an active ingredient?

A supplementary protection certificate cannot be granted for a medicinal product which is protected by the basic patent and placed on the market – even if the product is a new formulation of an “old” active substance. The Advocate General recommends this in an important SPC preliminary ruling in the Abraxis and Abraxan cases. If the ECJ follows the Advocate General’s recommendation, the possibilities of SPC protection for new pharmaceutical formulations will remain very difficult.

British reference for a preliminary ruling in the Abraxis Bioscience LLC case

Two seconds of music make history: Sampling in copyright law

The longstanding feud over the short music sequence “Metal on Metal” of the band Kraftwerk has been occupying German courts for more than 20 years and is decisive for artistic freedom in the sampling of music. The Advocate General’s recommendation strengthens the rights of record producers and significantly restricts artistic freedom in sampling.

Reference for a preliminary ruling from the BGH in case sampling of Kraftwerk music