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The Advocate General (AG) has advised the ECJ to dismiss Pepsico’s appeal against an invalidity ruling concerning a design for promotional discs known as “pogs”.
Pepsico’s design was challenged on the basis that it did not have individual character having regard to an earlier CRD. A design has individual character if it creates a different overall impression on the informed user than designs which were available to the public before the filing date of the design. When assessing individual character, the degree of freedom of the designer in developing the design is considered.
The AG recommended dismissing the appeal on the grounds that assessing individual character and design freedom are questions of fact, which can only be re-considered by the ECJ in the case of distortion.
Because “overall impression” can only be subjectively assessed, and cases will almost always turn on their facts, litigants are likely to find it extremely difficult to appeal cases to the ECJ.
The UK government is considering extending this power to depart from retained EU case law to additional lower courts and tribunals, namely the Court of Appeal in England and Wales and the High Court of Justice in England and Wales and their equivalents.
View blog
Lord Justice Arnold has applied the guidance of the Court of Justice of the European Union (CJEU) to the evidence before him, in the long standing trade mark dispute between Sky and Skykick.
The Hiscox Cyber Readiness report, a review of 3300 organisations, will be a stark warning for CEO’s of SME’s in the UK and in Europe.
How secure is your fitness tracker? (Not to mention your smartwatch, sleep tracker, smart shoe insoles and wearable Bluetooth keyboard). It’s something that many of us give little thought to, but perhaps we should be more concerned.
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