IP news

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Good morning everyone. Hope you all had a relaxing weekend, are staying safe and had a good start of the week. For this week’s news:

Lidl vs Thermomix update

With a lot of us working from home, I am sure many of you have been cooking more homemade meals. Some of us more or less successfully. Hence, it comes as no surprise that the interest in cooking appliances and robots, like Thermomix, is on the rise. If you remember, earlier this month we mentioned the case of Thermomix – Vorwek vs Mr Cuisine – Lidl.

Well, the Court of Barcelona has issued its decision and Lidl will have to remove from the market and stop selling its Mr Cuisine, since it was found that this robot infringes Vorwek’s patents. In the judgment, the judges established that Mr Cuisine copies almost all the essential characteristics of the Thermomix: the weighing function while the machine is cooking, as well as the protection function that prevents you from opening the lid while the robot is cooking. Lidl’s legal team will probably appeal, so we will keep you updated.

The war over Lady Di’s wedding dress

Yes, this is real. Regardless of what you think about the dress at issue, the couple (David and Elizabeth Emanuel) who created Princess Diana’s wedding dress is now at war over an auction of sketches of said dress. Miss Emanuel, 67, is being sued by her ex-husband after putting up for auction sketches of several of their designs for Diana: the wedding dress she wore to marry Charles in 1981, the chiffon blouse with ruff collar and satin that Diana wore for the official engagement photograph by Lord Snowdon for Vogue, a black and silver dress from the Out Of Africa film premiere in 1986, etc.

David wants to stop his ex-wife from selling the sketches without his consent and is asking for a court order preventing her from infringing his copyright over the drawings in the future, as well as for damages. The designer is even asking for any copy of the sketches to be destroyed.

According to the legal claim submitted by David’s lawyers last month, his ex-wife produced copies of their original sketches and put them in an auction called Passion For Fashion. David is also going against the auction house in London. He claims that both Miss Elizabeth and the auctioneer must have known their actions were unlawful because he had sought, unsuccessfully, an interim injunction banning them from selling the sketches.

David is now seeking a declaration that he and his ex-wife jointly own the copyright to the sketches, an injunction preventing her from infringing the copyright by taking unilateral decisions, and the right to inspect documents and obtain a share of any profits.

Oatly trademark

Last week the EU General Court upheld a trademark appeal brought by vegan food brand Oatly, overturning an earlier decision by the European Union Intellection Property Office (EUIPO).

Back in 2019, Oatly applied to register “It’s like milk but made for humans” as a trademark in the EU. Oatly applied for protection in classes 18, 25, 29, 30, and 32, to cover a range of foodstuff products. To make its products, Oatly uses a patented enzyme technology to mirror nature’s own processes and turn oats into nutritional liquid food. Oatly seeks to promote alternative eating habits as part of the fight against climate change.

The EUIPO raised objections to the mark’s registration in relation to classes 29, 30, and 32, including dairy substitutes foodstuffs and beverages. Oatly appealed this decision and in February 2020, the EUIPO’s fifth board of appeal upheld the examiner’s decision.

According to the board the first part of the trademark, “it’s like milk” indicates that the products sold were or contained milk substitutes. The second part, “but made for humans”, suggest that the goods are for human consumption.

Regarding the classes at issue (especially when relating the trademark to dairy substitutes), the applied-for mark would act as a promotional slogan rather than an indication of the commercial origin of the goods. This means that the trademark, according to the board, lacks distinctiveness for the classes at issue only. In addition, the length of the applied-for mark may prevent it from being recognised as a trademark by the public.

Oatly appealed, arguing that the board did not properly examine the distinctiveness of the trademark in respect of the goods at issue.

On appeal, the General Court parted ways from the decision of the Board of Appeal, and noted that the trademark conveys two ideas: that the goods covered by the mark are alternatives to milk which are suitable for human consumption, AND that milk itself is not suitable for human consumption.

According to the General Court, “the mark applied for calls into question the commonly accepted idea that milk is a key element of the human diet”. This triggers a “cognitive process” which actually makes the mark easy to remember, distinguishing Oatly’s goods from those originating elsewhere. Therefore, this mark has the minimum degree of distinctive character required by EU trademark law and the board erred in finding it to be devoid of any distinctive character.

The General Court annulled the contested decision of the EUIPO’s fifth board of appeal and ordered the EUIPO to pay the costs incurred by Oatly.

This is all for today! See you next week.