The CJEU has just confirmed that the concerted provision of misleading information about product safety can constitute a restriction by object under Article 101(1) TFEU, when it is intended to reduce the competitive pressure resulting from an alternative medicinal product (Case C-179/16, F. Hoffmann-La Roche and Others v Autorità Garante della Concorrenza e del Mercato).
On 29 November Italy’s Antitrust Authority launched non-compliance proceedings against Ryanair, the Irish air line for alleged unfair commercial practices and breach of the Italian Consumer Code.
Following the spate of flight cancellations, on 25 October the Rome Administrative Court (TAR), ordered Ryanair to provide information to its passengers – either through easily accessible procedures on the home page of its website or by standard email or by sms – on how they could receive reimbursement, change the flights to alternative flights and receive other compensation. The cancelled flights occurred between 10 September –2 October and Ryanair was given a 10 day deadline to rectify the positon and ordered to provide a full written report to the court setting out details of all cancelled flights, to make the necessary information updates to its website and to inform all customers of their respective compensation rights. Ryanair filed a brief to suspend the order but this was rejected and Ryanair failed to comply with the court order.
The Antitrust Authority in initiating its investigations for non-compliance of a court order will look into the reasons for the cancellation of numerous flights which had been booked and paid for. It will examine whether these were indeed not due to unforeseen circumstances nor to technical operational matters nor due to other reasons outside the control of the airline as well as examining whether the information was conveyed to passengers in a professional manner: Ryanair risks monetary sanctions of up to Euro 5 million for the said breaches.
The Irish airline has 30 days to file defence briefs and documentation in its defence. A decision of the Antitrust Authority will be issued within 120 days.
With a one-year delay, the Italian government has implemented the EU Directive 2014/26/EU “on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market”, the so-called Barnier Directive.
On 11 April 2017, the Legislative Decree no. 35/2017, which implemented the Directive, entered into force.
This way, the ‘freedom of right holders to choose their collective management organizations’, as well as the principle of ‘equal treatment of categories of right holders and equitable distribution of royalties’ has finally been recognised in the Italian legal framework.
However, this new Italian provisions have probably not gone as far as many had hoped.
The Italian IP Code (Legislative Decree no. 30 of 10 February 2005) provides that, where an action for invalidity or infringement is filed before a court with reference to a not yet granted/registered IP title (patent, trademark, designs etc.), judgment shall not be issued until the Italian Patent and Trademark Office (UIBM) decides on such grant/registration. For this reason, judges, taking into account the particular circumstances of the case, may stay proceedings one or more times waiting for the outcome of the administrative procedure (Article 120.1).
Although Art. 120.1 only refers to grant/registration procedures before the UIBM, a large part of the case law holds that this provision reflects a general principle that is also applicable to patent applications filed before the European Patent Office (Court of Turin, 3.12.2013; Court of Turin, 6.5.2013; Court of Turin, 16.10.2012; Court of Turin, 28.9.2012; Court of Milan, 23.9.2012; Court of Turin, 7.4.2010; Court of Turin, 3.10.2008).
What is more controversial is whether the above provision also applies where a European patent – after having been granted – has been subject to an opposition procedure before the EPO.
Some decisions seem to imply that Art.120.1 should also be applied when the European patent is subjected to an opposition procedure and that, consequently, a decision can be issued only when there is certainty about the existence of the title and of its actual scope of protection (Court of Turin, 3.12.2013).
More recently, the Court of Milan also ruled on the above issue with judgment no. 803 of 23 January 2017, wherein it held that there is no general obligation for the judges to wait for the conclusion of the opposition/appeal procedure, but it is up to the Court to discretionarily assess the circumstances of the case, in order to determine whether to stay the proceedings or not.
In the case decided by the Court of Milan, the plaintiff’s patent, being the subject matter of the proceedings, had been granted by the EPO and was subsequently limited by the Opposition Division. The plaintiff appealed the decision before the Board of Appeal of the EPO and the defendant sought a stay of the Milan proceedings on the basis of Art. 120.1.
The Court stated that whilst it is an established principle that Art. 120.1 is applicable to patent applications filed with the EPO, it is up to the discretionary evaluation of the Judge whether to stay the proceedings when the opposition is pending.
In this regard, judges shall carry out a summary evaluation of the grounds of opposition and consider the possibility that the related decision may be relevant for the purpose of the national proceedings.
The Court noted that, according to the case law of the EPO, if a decision is only appealed by the patentee, the Board of Appeal cannot conclude in a sense less favourable to the patentee than that resulting from the appealed decision (prohibition of “reformatio in peius”).
In light of this, the Court observed that the scope of the plaintiff’s patent was maintained in an amended form by the Opposition Division; the Court advisor appointed in the Italian proceedings had already provided his technical opinion on the amended version of the patent; and the Board of Appeal could not further limit this scope of protection or revoke the patent.
Therefore, the Court held that no stay would have been appropriate, as there was no uncertainty with regard to the existence and scope of protection of the patent.
The decision at issue states that there is no general obligation to stay the proceedings once a patent is granted and opposition thereto is pending and identifies a number of factors/circumstances to be assessed in order to determine the appropriateness of a stay of the national proceedings.
The Italian Competition Authority (AGCM) and the Italian Medicines Agency (AIFA) recently signed a Memorandum of Understanding with a view to strengthening their cooperation. The Memorandum underlines that the two agencies share common interests, which relate in particular to keeping high levels of competition, granting access to medicines and preserving the economical balance of the pharmaceutical system. The Memorandum thus intends to help its signatories perform their mission in a more coordinated and efficient manner.
The main issues tackled in the Memorandum are, on the one hand, the potential violations of competition rules in the setting of drug prices, which are agreed upon in negotiations between AIFA and the pharmaceutical companies, and, on the other hand, unlawful counterfeits/online marketing of medicines.
The Memorandum provides that each agency shall report to the other in case it comes across, within the framework of its activities, a risk of violation of the provisions for which the other agency is responsible.
The two agencies also undertake to cooperate in developing reports to the Italian Parliament and Government and in carrying out enquiries on shared interest matters.
In order to ensure such cooperation works, they agree to exchange documents, data and information, establish regular communication channels and carry out any other appropriate activities, including informal activities.
Being aware that this is a sensitive aspect, the Memorandum specifically indicates that divulgation to third parties of documents, information and data acquired as a result of its implementation will have to comply with the secrecy and privacy provisions the receiving agency is subject to.
AGCM President, Mr Pitruzzella, reportedly declared that the Memorandum will intensify the already existing cooperation between the two agencies. He pointed out that the end users in the pharmaceutical sector – the consumers – are particularly vulnerable, and that, on the other hand, the companies operating in the sector make substantial investments. In this framework, he considers AIFA’s contribution and expertise to be particularly valuable.
The Pharmacies’ association, Federfarma, welcomed the Memorandum pointing out its underlying importance in the fight against illegal online marketing and infringement of pharmaceutical products and affirmed its willingness to cooperate in fighting online infringers.
Although the Memorandum is not particularly detailed and did not have wide media coverage, it is likely to have a rather positive impact, for instance in helping prevent situations such what occurred in the Aspen case (see our lexology post of 3 November 2016), where AGCM fined a pharmaceutical company for an abusive price increase which actually resulted from an agreement negotiated between such company and AIFA.
Dopo alcuni anni di ricerche, discussioni, controlli e aggiustamenti, all’inizio dell’anno scorso (febbraio 2015) l’Ufficio Italiano Brevetti e Marchi (UIBM) ha finalmente introdotto una procedura telematica per il deposito online di domande tramite una piattaforma digitale. Inizialmente, le domande online erano state limitate ai marchi, brevetti e modelli ornamentali e relative istanze, tuttavia in un secondo tempo, nel novembre 2015, la procedura telematica era stata estesa anche alle varietà vegetali, al deposito di opposizioni, ricorsi e relative istanze.
La giurisprudenza europea è tornata ancora una volta ad occuparsi del giudizio di confondibilità tra marchi d’impresa e della percezione del pubblico nell’ambito di una annosa, quanto infuocata, disputa tra i celebri marchi SKY e SKYPE.
Last spring our blog examined trademarks and Geographic Indications (GIs) see Daniela Ampollini below, “Se è un marchio è un marchio, se è un’indicazione geografica, non può essere un marchio” and in December 2014 the overlap between GIs and trademarks was a conference topic for partner, Julia Holden at the INTA December meeting in Munich. Last week in Brussels a one day conference also discussed whether Geographical Indications (GI) should be extended to non agricultural products. While the conference findings and responses to the consultation Green Paper are yet to be published, this article looks at whether it could be useful to extend the stretch of GIs beyond its current limits of foodstuffs wines and spirits to additional non-agricultural products.
E’ stata pubblicata ieri la decisione della Corte di Giustizia dell’Unione Europea nel caso Apple (C- 421/13) relativo alla registrazione come marchio del format dell’Apple Store, e la Corte a detto che potrebbe in effetti trattarsi di marchio valido.
E’ noto agli addetti ai lavori che la protezione della tutela dei format commerciali – siano essi relativi a c.d. flagship stores di prodotti (tipicamente nel campo dell’abbigliamento, ma non solo) o a esercizi di ristorazione, bar o simili – non è questione di facile soluzione: fino a che punto può lo strumento del marchio servire a proteggere l’aspetto specifico, il format, del negozio o ristorante, oltre ovviamente all’insegna ed al marchio propriamente detto utilizzato all’interno dello stesso? Possono servire altre forme di tutela, quali ad esempio il design registrato o il diritto d’autore? Secondo la Corte di Giustizia, è chiaramente ipotizzabile una registrazione di marchio che riguardi “l’allestimento di uno spazio vendita”.
Con sentenza C-35/13 dell’8 maggio 2014, la CGUE ha definito il regime di protezione che uno Stato membro può applicare alle denominazioni geografiche prive di registrazione comunitaria, reiterando, in sostanza, il principio del primato comunitario assoluto in materia di indicazioni geografiche protette, almeno in quei settori – come quello alimentare – già coperti dalla disciplina comunitaria.
Il caso riguardava il “Salame Felino” o “Salame di Felino”, insaccato proveniente da Felino e dintorni, nella provincia di Parma e vedeva contrapposte, in una causa iniziata ormai più di quindici anni fa, l’Associazione fra produttori per la tutela del Salame Felino (infra ’Associazione fra produttori’) insieme con tutte le aziende ad essa aderenti, da un lato, e Assica (Associazione Industriali delle Carni e dei Salumi) e Kraft Foods Italia, dall’altro.