The well-known marks are used as a safety valve in the protection and preservation of the commercial value of trademarks. It is a shield, available to trader to protect its financial investment in the allure of the trademark, and a sword against anyone who wants to engage in free riding on this investment. The overall analysis of the boundaries of extended protection for trademarks in the form of remedies, demonstrates that a trader cannot rely on a well-known mark status without any obligations attached to it. The whole idea of this article rests upon access points for interested third parties, to word embedded in the well-known mark. This article introduces two access points, independently developed from the European trademark framework, that have as an underlying idea the protection of market principles and other traders, rather than the protection of the trademark owner. The problem of well-known marks and their interaction with market principles derives from a simple fact that the basis for their protection rests upon the suggestive function of the trademark. This suggestive function needs to be curtailed in order for the proper functioning of the market to occur. Curtailment occurs in the form of boundaries to its protection, in the form of access points. These access points have been grouped in two areas. Firstly the general principles of EU law, and secondly the competition law.
The case Google Spain decided in front of the CJEU provides for just one example of an infinite number of occasions in which parties such as end users, content owners and rights management organisations have sought to assign intermediaries/Internet Service Providers (ISPs) with liability for infringements perpetrated online. Internet actors often look to ISPs as the gatekeepers of the web and therefore the most suitable party to be held liable in relation to illegal online activity, whether it is in relation to economic or fundamental rights and interests. Accordingly, this article provides an overview of the ever-shifting notion of ISP liability in the online digital environment in light of the Google Spain decision, in a specific attempt to answer the following question: how far are we willing to affect the functioning of ISPs through their liability for online activity in order to install order in an unruly digital arena?
Translation and case note Pirate Bay B 2787-16 (Högsta domstolen).
U radu se analizira praksa Suda Europske unije u vezi s iznimkama iz čl. 5. st. 2. toč. a i b Direktive o informacijskom društvu. Izlažu se pravna shvaćanja Suda EU o naravi štete koju trpe nositelji prava uslijed privatnog reproduciranja te naravi pravične naknade, diskreciji koju uživaju države članice EU pri uređivanju iznimke privatnog kopiranja, mogućnosti naplate naknade u slučajevima prekogranične prodaje medija i uređaja, izvorima iz kojih je moguće legalno reproducirati djela za privatno korištenje, uporabi sredstava prikupljenih na temelju naknade za privatno reproduciranje, utjecaju primjene tehničkih mjera na sustav privatnog kopiranja te (ne)mogućnosti primjene sustava privatnog kopiranja na download djela. Upozorava se na potrebu preispitivanja nacionalne prakse u području ostvarivanja autorskog i srodnih prava s pravnim stajalištima Suda EU.
The proposal for a Directive on Copyright in the Digital Market contains a proposal to harmonise protection of copyright in the digital market and to close the so-called 'value gap'. The value gap is a term that, in the realm of online copyright dissemination, signifies a situation where the right holder (for example, the author of a song) is not adequately remunerated for his or her work. This situation usually occurs when his or her song is made available on an online platform, such as YouTube, and he or she is not paid for the use and enjoyment of the work. The current market mechanism to tackle this problem is done via licensing schemes.
This paper will analyse the possible Trojan horse that is hidden in this proposal in order to ask whether, when it comes to online regulation and enforcement of copyright, the deployment of article 114 TFEU is the correct legal basis for the EU to enhance accountability of internet service providers in the regulation and enforcement of copyright.