Dr. Rudolf Böckenholt comments on the ruling of the Berlin Regional Court on the subsidization of a cultural magazine in GRUR-Prax 11/2023

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A cultural magazine published by a sovereign body may not be subsidized without a sufficient basis for authorization (Berlin Regional Court judgment, February 23, 2023, 52 O 64/22).

In the issue 11 /June, 7, 2023 of “GRUR-Prax – Gewerblicher Rechtsschutz und Urheberrecht / Praxis Immaterialgüter- und Wettbewerbsrecht” BOEHMERT & BOEHMERT partner and attorney-at-law Dr. Rudolf Böckenholt explains a hotly debated decision of the Berlin Regional Court of February 23, 2023 (52 O 64/22, GRUR-RS 2023, 4645) on the question of whether the cultural magazine “Sinn und Form”, which is published and distributed by the Berlin Academy of the Arts, may be subsidized in order to cover its costs.

In the absence of a corresponding basis for authorization, the Berlin Regional Court answered this question in the negative and prohibited the Akademie der Künste from continuing to pay the cultural magazine cover contributions. The lawsuit was brought by the competitor “Lettre International,” which felt that these payments distorted competition. Without sufficient legal authority to engage in press activities at all and in a specific area, a sovereign body violates the requirement that the press be independent of the state and thus unfairly interferes with otherwise free competition.

Fabio Adinolfi comments on ECJ judg­ment T-423/21 on the question of like­lihood of confu­sion between two trade marks registered for fish products in GRUR-Prax

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In issue 9/2023 of “GRUR-Prax – Gewerblicher Rechtsschutz und Urheberrecht, Praxis im Immaterialgüter- und Wettbewerbsrecht” BOEHMERT & BOEHMERT attorney at law Fabio Adinolfi discusses the ECJ judgment T-423/21 of 14.09.2022 on the likelihood of confusion of word/figurative marks.

In this judgment, the court follows the decisions of the lower instances and confirms the likelihood of confusion of two trademarks registered for fish products. A stylized fish as the dominant image in the younger mark was not found to be distinctive.

Attorney at law Fabio Adinolfi welcomes the ECJ ruling, as it puts a stop to the popular strategy of adding a figurative element to word marks in order to prevent a possible likelihood of confusion with third-party marks.

According to Fabio Adinolfi, figurative elements are only distinctive and suitable for avoiding collisions if they have no relation to the own goods and services sought.

Read the complete discussion of the ECJ judgment by Fabio Adinolfi in german language in the issue 09/2023 of GRUR-Praxis! Registered users of Beck-Online can download it here.

EPC: Amendments to rules for postal and electronic notification by the EPO

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Amendments to Rules 126(2), 127(2) and 131(2) EPC concern the postal and electronical notification by the European Patent Office (EPO), and the calculation of time periods triggered by a notification

 On 13 October 2022, the Administrative Council adopted changes to Rules 46, 49, 50, 57, 65, 82, 126, 127 and 131 of the Implementing Regulations to the European Patent Convention (CA/D 10/22). The amendments concern, inter alia, Rules 126(2), 127(2) and 131(2) EPC which relate to the notification of documents served by the EPO by postal services and by electronic means, and to the calculation of periods triggered by the notification. New Rules 126(2), 127(2) and 131(2) EPC enter into force on 1 November 2023 and apply to documents served by postal services or electronic means on or after that date.

These amendments remove the 10-day notification fiction according to the current Rules 126(2) EPC and 127(2) EPC, according to which a document is deemed to be served successfully on the tenth day after the date stated on the document, which is taken into account in calculating periods triggered by the notification of communications from the EPO. Instead, new Rules 126(2) and 127(2) EPC provide for a new notification fiction, according to which postal and electronic notification are deemed to occur on the date of the document. The EPO expects that the new notification fiction will result in a simplification for users since it brings the EPC and PCT notification regimes closer together.

Amended Rules 126(2) and 127(2) EPC also govern the burden of proof in exceptional cases in which notification of the documents is in dispute. As before, the EPO retains the obligation to prove the fact and the date of delivery in such instances. If the EPO is unable to prove that a document was delivered to the addressee within seven days of the date it bears, a so-called “safeguard” will be applied, resulting in that a period triggered by the deemed receipt of that document will be extended by the number of days by which these seven days are exceeded.  The general principles governing time-limit extensions set out in Rule 134 EPC will apply to the period recalculated applying this safeguard.

Rule 131(2) EPC has been adapted to the effect that the rule now explicitly refers to the fiction of notification of the documents as the relevant event for the purposes of time limit calculation.

Amended Rules 126(2), 127(2) and 131(2) EPC are intended to take into account the principle of instantaneous notification in the digital world. The EPO mailbox is deemed a reliable service available to all professional representatives and applicants in the EPC contracting states and covering 99% (by volume) of all documents issued by the EPO. For applicants and representatives, new Rules 126(2), 127(2) and 131(2) EPC impose a change in the practice of recording time limits and thus also the training of staff, in particular with regard to the handling of exceptional cases in which notification of the documents is in dispute, even if the latter are unlikely to occur in daily practice.

Important URLs:

https://www.epo.org/law-practice/legal-texts/official-journal/2023/03/a29.html

https://www.epo.org/law-practice/legal-texts/official-journal/2022/11/a101.html