ECJ Blown Away

The wind of European history comes recently from European Court of Justice. The good hunter must always find out its directions.


Tomasz Będźmirowski


On July 7, 2016, the Court of Justice of the European Union (“CJEU”) in Case C-494/15 ruled that the tenant of market halls who sublets the various sales points situated in those halls to market-traders, some of whom use their pitches in order to sell counterfeit branded products, falls within the concept of “intermediary”, against whom such injunctions may be addressed as provided for in the national law of the Member States. Put differently, and setting the case against the Polish legal backdrop for a change and effect, protection of claims and injunctions aimed at prohibiting the continuation of intellectual property (trademark related or otherwise) infringement may be applied or issued against the operators of a physical marketplace, based on Article 422 of the Polish Civil Code.


Product labeling may not mislead the consumer

Karol Błąd

Court of Justice of the European Union (the “Court”) on 4 June 2015 (case C-195/14), stated that presenting on the product packaging ingredients which are not in fact present in the product may mislead the purchaser. According to article 2(1)(a)(i) of the Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labeling, presentation and advertising of foodstuffs (the “Directive”), misleading labeling of products is forbidden, since it should not evoke the impression, that some specific ingredient is present in the product, when in fact it is not. The Tribunal pointed out, that even, when on the product packaging there is a correct and comprehensive list of ingredients it could be in some cases not enough to remove false impression of the purchaser, who at first evaluates the product packaging (not the list of ingredients).


The european view on legality of links

Dorota Senger

Link – i.e. a reference to another file or website is a convenient navigation tool and plays a vital role in websites’ SEO. However, embedding a link can be a risky business if it leads to a file or a website containing copyrighted work. Recently highest European courts were to decide whether the linking itself breaches the copyrights to the work to be find under the link by exposing it to the audience (legal term: dissemination) or not. Due to the scale of linking the judgment can be of interest of many IT professionals.

Most recent judgment in the case of Svensson and others against Retriever Sverige AB of the Court of Justice of European Union dated February 13th, 2014 (C-466/12) answers a couple of questions: whether embedding a link to copyrighted work by someone else than a copyright holder is actually an act of making the work available for the audience (dissemination)? Furthermore does it depends on the access restriction (e.g. a fee for the access) to the website where the work was originally posted?


Schrems v Data Protection Commissioner

Tomasz Będźmirowski

Safe Harbor Era

Through the judgment dated October 6, 2015, the Court of Justice of the European Union (hereinafter: CJEU) invalidated the Commission Decision 2000/520 / EC of July 26, 2000 (hereinafter: Decision), and consequently voided the U.S.-EU Safe Harbor Framework of its significance as a guarantee of an adequate level of personal data protection.
Permit me to recall to your memory that the Safe Harbor Framework was once developed by the European Commission and the US Department of Commerce as a practical means to overcome the differences in the approach to protection of personal data between the European Union and the United States. The high standards set by Directive 95/46 / EC of the European Parliament and of the Council of 24 October 1995 (hereinafter: Directive) determined the classification of the United States as a third country which does not ensure on its territory an adequate level of protection of personal data – to use the terminology employed in the Polish national legislation implementing the Directive (namely, the Act of August 29, 1997 on the protection of personal data; hereinafter: Act). Such a classification generally excludes the possibility of transferring data to the United States. But then, what are the exceptions for?


A new challenge for 3D trademarks registration.

Szymon Gajda

Recent judgment issued on 18 September 2014 (Case C – 205/13 Hauck GmbH & Co.KG v Stokke A/S, Stokke Nederland BV, Peter Opsvik and Peter Opsvik A/S), by the European Court of Justice contains significant guidelines regarding registration of 3D trademarks, which base on the shape of the object.

The court formed two negative conditions of such a registration. The trademark can’t be validly registered when even one condition occurs: its shape which results from the nature of the object (goods) themselves or shape gives substantial value to the goods.