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).
The legal principle that minor differences to a weak mark can have a significant impact on the likelihood of a finding of no confusion was reaffirmed with a recent decision by the First Section of the Italian Supreme Court (Order No. 28818/2017).
The Directive and Decree 35/2017 identify two kind of entities which may be entrusted with the management of copyright and related rights: (i) collective management organisations and (ii) independent management entities.
Collective management organisations are owned/controlled by their members and/or are organised on a not-for-profit basis, while independent management entities are neither owned nor controlled by rightholders and are organised on a for-profit basis.
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.
On 1 October 2017, an additional set of rules concerning EU trademarks under EU Regulation 2015/2424 amending EU Regulation 207/2009, and codified under EU Regulation 2017/1001 (hereinafter EUTMR), came into effect.
The former provisions required that, in order to obtain registration, a trademark had to be capable of: i) being represented graphically; ii) distinguishing the goods or services of one undertaking from those of other undertakings.
By abolishing the requirement of graphical representation, the reform aims at facilitating the registration of non-traditional trademarks such as sound, colour, pattern, motion, multimedia and hologram marks.
The famous Italian luxury brand Ferragamo has recently won a case before the Court of Milan (judgement no. 7940/2017) concerning counterfeiting of its signature metallic-plate-ribbon applied at the tip of the “Vara” shoes, as shown in the image below.
The Florentine maison was taken to Court by two Chinese footwear shops owners located in Milan’s Chinatown; they requested a declaration of non-infringement for their products represented below.
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.
L’amministratore di s.r.l. che impedisce al socio non amministratore di accedere agli atti relativi all’amministrazione e alla gestione della società risponde del reato di “impedito controllo” previsto all’art. 2625 c.c.
È quanto stabilito recentemente dalla VI sez. penale della Cassazione con sentenza n. 47307 del 27 settembre 2016, con cui la Corte ha confermato la condanna dell’amministratore di una società a responsabilità limitata per aver ostacolato il controllo e la verifica delle informazioni relative alla gestione della società da parte di un socio che ne aveva fatto richiesta.
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.