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).
Translation and case note in case B 1540-18 (Dreamfilm).
Translation and case note on the Swedish Scapegoats Case T 1963-15 (Högsta domstolen).
Translation and case note Sony Mobile Communications T 3973-15 (Högsta domstolen).
Translation and case note in case B 5089-16 - Mr Syed
With the judgement in joined cases C‑202/18 and C‑238/18 (Ilmārs Rimšēvičs) the CJEU for the first time annulled a national measure. However, this case needs to be seen in its context, and that is that the CJEU shaped a direct form of remedial action of annulment of a national measure. Furthermore, this remedial action is very narrow in its scope of application and in can only be applied only to relieved governors of National Central Banks in the Eurozone Member States of the EU (in 2019 that was 19 countries).
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.
This chapter provides an analysis in the material scope of application of the moral right of divulgation and the economic right of communication to the public in the EU’s digital single market. The aim is to bring forward arguments why the application of both rights should only be addressed through the protection afforded by the economic right. The rationale behind this is that the right of divulgation, as a moral right of the author, and the right of communication to the public, as an economic right of the author, both share the same trigger point for their application. This trigger point consists of the author’s choice in sharing her or his work with the public, in which the author of the work also chooses the manner, shape and place where this sharing will occur.
Unlike the economic right of communication to the public, which has been harmonised in the EU, the right of divulgation, as a moral right is deeply rooted in the national legislative and judicial interpretation of the Member States that recognise this moral right of the authors. In line with this and for this chapter, analysis of the material scope of the application of the right of divulgation is evaluated through the monistic and dualistic approach to the regulation of copyright, and the jurisdictions that are analysed are primarily France and Germany.
Against this background, the analysis in the chapter provides for overlapping interpretational criteria of both rights that encompass an act of sharing, the definition of what the public is, and what the modes of dissemination of work are.
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.