EU Trade Mark & Copyright Law PDF

An EU trade mark may consist of any signs, in particular words, including personal names, or designs, letters, numerals, colours, the shape of goods or of the packaging of goods, or sounds, provided that such signs are capable of: (a) distinguishing the goods or services of one undertaking from thos...

An EU trade mark may consist of any signs, in particular words, including personal names, or designs, letters, numerals, colours, the shape of goods or of the packaging of goods, or sounds, provided that such signs are capable of: (a) distinguishing the goods or services of one undertaking from those of other undertakings; and (b) being represented on the Register of European Union trade marks (‘the Register’), in a manner which enables the competent authorities and the public to determine the clear and precise subject matter of the protection afforded to its proprietor. 【Summary】Not the point. Articles are much like domestic laws. Principles of the EU trademark: Unity, autonomy and coexistence. § EU trademark exists uniformly throughout the European Union § granting, infringement and licensing of the EU trademark is governed exclusively by EU law (in contrast to the European patent, which bundles national patents and for which acts of infringement must be judged according to national law) § EU trademark exists independently of national law and can coexist with other intellectual property rights (such as a national trademark!) Requirements of the Union trade mark: § Only by registration; no use mark possible § Requirements parallel to the Trademark directive § Application to EUIPO or to national office, which forwards the application § EUIPO searches for conflicting earlier EU trademarks upon request § Registration takes place only after expiry of the opposition period Part. 3 copy right 1 introduction 1.1 Function of the copyright law regime Why do we need copyright Protection? ➢ Entity of legal relationships, where art, literature and academic works as well as accomplishments of practicing artists along with producers are created and provided in order to be utilized 36 ➢ Objective approach: the sum of legal norms regulating the relationship of the author and his legal successors to his work ➢ Subjective approach: a "power of will conferred by the legal order", a right of sovereignty over the intellectual work, an intellectual property right ("Willpower conferred by the legal order", sovereignty over IPRs, IPRs) ➢ Copyright is a subjective and absolute right between contracting parties or between individual people, but between everybody, reserve in everyone. - absolute right ➢ Incentive function exclusive right; get a reward ➢ Investment protection function (Promotion of qualified human communication) ➢ Right of the creative spirit We're not the commercial expectation, but we're thinking in terms of personality rights. Intellectual achievements are to be honored and respect for the intellectually/creatively active individual is to be expressed 1.2 Parties and their interests ➢ Author -Bears the full risk of every creative work - Important remuneration and care function - Interest: Protection of economic and ideal interests ➢ Cultural exploiter (including collecting societies) Fulfill an important cultural mediating task for example, the a broadcasting radio show, or by just making videos and music available to the public. So they're not the office, on the other hand, they're also not the consumers, but they just try to have some kind of mediating task here, some mediating rule. And this is also quite important because otherwise we will probably not be able to consume as much intellectual work as we're actually doing today. (An example is similar to the relationship between a radio program and a broadcaster) - Dependent on the free will decision of the author → obligation to conclude contracts (depends on the author’s wishes – requires a contact) - Once they acquired a license, they can act in their own right against unauthorized competition (Once they are licensed, they can exercise their rights against unauthorized competition) - Interest: amortization / protection of investments ➢ Cultural Consumer Mere perception of a work => no copyright-relevant act of exploitation A visit to a museum -- pays an admission fee to the museum, not a royalty - Own act of exploitation => conflict with the exploitation interest of the 37 author/the collecting societies (Conflicts with the interests of authors and collecting societies, royalties should be paid) - Interest in participating in social and cultural life at the lowest We are casual consumers have, of course, an interesting social and casual life at the very lowest level. (The most basic and interesting social and cultural life, which can be freely consumed.) ➢ Interests of the general public - Culture promoting function - Art. 1 Sec 8 (8) US Federal Constitution ”… to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discretions." - Facts, information, ideas, research results and stylistic means may therefore not be monopolized by means of copyright law 4 different parties involved, and each of these 4 is individuals We have 2 fundamentally different approaches to copyright, one is Germany approach, one is American approach (1.3) 1.3 “Urheberrecht” vs. copyright ➢ Continental European Understanding: “Urheberrecht”, „droit d’auteur, „diritto di autore“ copy right 的不同语言 - Creator principle: Copyright is related to the person of the creator of the work, who is protected in his ideal relationship to his work and in the use of his work, Sec 11 GCA (Copyright relates to the individual creator of the work, who is protected in his ideal relationship to the work and its use) - Author can only be the natural person who created the work, Sec 7 GCA - The protection of the “Urheber”, the “auteur” and the “autore” is of great Importance put the creator in the middle of everything Only natural persons can be creators, not institutions ➢ “Urheberrecht” vs. copyright § Anglo-American understanding: Copyright - Economic approach: Copyright should protect economic investments, but not reward the creator of the work => "total buy-out" possible does not put the creator in the middle of everything, but puts economic interest in the middle of everything - Purpose: derive the greatest possible (economic) benefit from the work (Maximize financial benefits from work) - The economic exploitation of the “copies” is of great importance (The economic exploitation of reproductions becomes especially important, because while one piece is good, several are better.) 38 - Also legal entities can be copyright owners (Since our center is not a natural person, legal entities can also cultivate owners.) 1.4 Copyright in the European Union Development of European copyright law since the early 1990s Seemed to follow the Anglo-American approach => later: return to continental European approach (Initially, the US method was chosen for free market reasons, but it was not considered accurate enough and was shifted to the continental European method.) Art. 118 TFEU1: Competence for the issuance of regulation (EU has not made use yet!) CJEU is of great importance due to its preliminary ruling procedure (Art. 267 TFEU2) 1 Art. 118 TFEU：In the context of the establishment and functioning of the internal market, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and supervision arrangements. The Council, acting in accordance with a special legislative procedure, shall by means of regulations establish language arrangements for the European intellectual property rights. The Council shall act unanimously after consulting the European Parliament. 2 Art. 267 TFEU: The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay. 39 One information have 3 different layers and each layers can be subject to different rights which are standing next to each other. One information have 3 different layers and each layers can be subject to different rights which are standing next to each other. First layer, the blue one was just because of the layer, for example, the paper. Going one, Basically just data. we can think of some data rights maybe, but we're not sure about it. And now we're on the last layer, the content layers for what is actually. In this paper, what I wrote on that, which is the content later. And here we are on the intellectual property rights, they are. Having that in mind I go back one slide because it is about the copyright or the relationship between copyrights and table and goods. And the current court of justice in Germany, once that they're clear, because it's that copyright and property in the original work are independent of each other and set independently side by side, it's, this is very important when it comes to the principle of exhaustion in copyright law. 1.5 Copyright and tangible goods ➢ "Copyright and property in the original work are independent of each other and stand independently side by side.” (BGHZ 62, 331 (333) – (Schulerweiterung Copyright and property in original works are independent of each other and go hand in hand) ➢ Interpretation rule Sec 44 (1) GCA3: The transfer of the property right of the tangible good does not in itself constitute the granting of rights of use under copyright law and, conversely, the granting of all rights under copyright law does not necessarily have to be accompanied by the transfer of the property right of the tangible good 3 Sec 44 (1) GCA: If the author sells the original of a work, then, in cases of doubt, he or she is not deemed to have granted a right of use to the buyer.如果作者出售作品原件，那么在有疑问的情况 下，作者不被视为已将使用权授予买方。 40