LabOUTIN CASE :....................................................................................................................

1
Dispute :.................................................................................................................................2
Louis Vuitton.............................................................................................................................3
Law :......................................................................................................................................4
Summary of louis vuton case :.............................................................................................10
Aceites case :........................................................................................................................11
The proceedings before the court of first isnatcne and the judgeemmt under aqppeal :..13
The appeal :......................................................................................................................15
Summary of aceite la espanola :..........................................................................................17
Findings of court :............................................................................................................17
Schappes case :.........................................................................................................................20
KitKat case :.........................................................................................................................26
Embryo case:........................................................................................................................27
Decision of the second board of appeal :.................................................................................29
Antitrust:commission opens formal investigation into possible anticompetitive conduct of
TEVA in relation to a blockbuster multiple sclerosis medicine :........................................29
Australia news code: What’s this row with Facebook and Google all about?...30
The boundaries of an undertaking :..........................................................................................32
Rolex case:...........................................................................................................................33
United brands v commission ;.............................................................................................34
Coty case :............................................................................................................................35
Eturas case :........................................................................................................................36
Cases for article 102?...........................................................................................................37
Facebook WhatsApp merger case?......................................................................................38
Melia case art 101 :..............................................................................................................38

LabOUTIN CASE :
The Dutch court stated that, since the mark consists of a colour which is applied
to the sole of a shoe and is thus also an element of the product, the question
arises as to whether the exception set out in Article 3(1)(e)(iii) of Directive
2008/95 applies to that mark and stayed the proceedings and requested a
preliminary ruling from the CJEU as it was unsure whether the concept of
‘shape’, within the meaning of that provision, is limited solely to three-
dimensional properties of a product, such as its contours, measurements
and volume, or whether that concept also covers properties that are not
three-dimensional.

The shape which results from the nature of the goods themselves
Shape of goods which is necessary to obtain a technical result
Shape which gaives substantial value tpo the goods ( maybe our case )

Benelux convention on IP

e 2.1, entitled ‘Signs that may constitute a Benelux trade mark’, of the
Benelux Convention on Intellectual Property (Trade Marks and
Designs), signed in The Hague on 25 February 2005 by the Kingdom
of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the
Netherlands, states:

‘1. The names, drawings, imprints, stamps, letters, numerals, shapes

of goods or packaging and all other signs that can be represented
graphically and that serve to distinguish the goods or services of
an undertaking shall be c

onsidered as being individual trade marks.

2. However, signs consisting solely of a shape which results from the

nature of the goods, which gives a substantial value to the goods or
which is necessary to obtain a technical result, cannot be considered
as being trade marks.
Dispute :
- Registration for a good and servie class 25 : : mark at issue :
- Mark consiusts of color red
- 2012: nethelrand guy sells whith red sole
- 2013:L amended to say only for high heel (labputin ) and expciitly stated countour of
the hsoe is not part of tm
- Court delivered a udgement upholding in part the claims of Christian laboutin

Is it two dimensional :
- Intended to hsow positioning of makr *( the drawing )
Av consumer : identified it as a laboutin show  susbnattila value
‘Is the notion of “shape”, within the meaning of Article 3(1)(e)(iii) of
[Directive 2008/95] (respectively referred to in the German-, [Dutch-]
and French-language versions of [that directive] as “Form”, “vorm”
and “forme”), limited to the three-dimensional properties of the
goods, such as their contours, measurements and volume
(expressed three-dimensionally), or does it include other (non-
three- dimensional) properties of the goods, such as their colour?’
- Sign not a shaope : registration of mark not done tpo proetect shape but for sole +
explicit reference

- Directive 2008/95 must be interpreted as meaning that a sign

consisting of a colour applied to the sole of a high-heeled
shoe, such as that at issue in the main proceedings, does not
consist exclusively of a ‘shape’, within the meaning of that
provision

Christian Louboutin,

Christian Louboutin SAS

Van Haren Schoenen BV,

ssue does not relate to a specific shape of sole for high-heeled shoes since the
description of that mark explicitly states that the contour of the shoe does not
form part of the mark and is intended purely to show the positioning of the red
colour covered by the registration and that a sign, such as that at issue in the main
proceedings, cannot be regarded as consisting ‘exclusively’ of a shape, where, as
in the present instance, the main element of that sign is a specific colour designated by
an internationally recognised identification code.

 mark consisting of a colour applied to the sole of a shoe is not covered by the above-
said prohibition of registration of shapes as trademarks.

Louis Vuitton
Basically lv contested the registration of bee fee group but euipo did not allow it

So they appeal:
- The registered under class 32 35 43 : so like soft driks …
- Vs lV : classes 18 and 25 : udnerwaer luxury /…
 - Euipo : goods dissimilar so no ocponfusion
- Mark similarty to lowe degree
- Demonstrated and rejdted the application for a delcration of invalidity
- Mark similar but only to a low degree
-  no positive or negative image transfer

207/2009, read in conjunction with Article 8(1)(b) of that regulation,

it found, in essence, that the goods and services in question were
dissimilar, which was sufficient to rule out a likelihood of confusion.

In the second place, concerning the ground of invalidity referred to in

Article 53(1)(a) of Regulation No 207/2009, read in conjunction with
Article 8(5) of that regulation, it found that, as a whole, the marks
were dissimilar and rejected the application for a declaration of
invalidity on that ground. It stated, however, for the sake of
completeness, that, even if there were a certain degree of similarity
between the marks at issue, which would be very low at the most, in
particular assuming that the earlier mark would be perceived as the
combination of letters ‘lv’, the application for a declaration of
invalidity had to be rejected. According to the Board of Appeal, the
applicant had not shown that that mark was known by a
significant part of the public concerned — that is, the general
public — in respect of the goods that it covered. It stated that, even if
the claimed reputation of the mark were established, any use of the
contested mark by the intervener in connection with the goods and
services covered by that mark would not take unfair advantage of,
or be detrimental to, the distinctive character or repute of the
earlier mark in respect of, in essence, bags and fashion wear.

Law :

1. rst, infringement of Article 8(5) of Regulation No 207/2009 and,

secondly, breach of the general principle of legal certainty and
infringement of Article 75 of Regulation No 207/2009 (now
 2. the trade mark applied for must not be registered where it is
identical with, or similar to, the earlier trade mark and is to be
registered for goods or services which are not similar to those
for which the earlier trade mark is registered,

where, in the case of an earlier EU trade mark, the trade

mark has a reputation in the European Union and, in the
case of an earlier national trade mark, the trade mark has a
reputation in the Member State concerned and where the
use without due cause of the trade mark applied for
would take unfair advantage of, or be detrimental to,
the distinctive character or the repute of the earlier
trade mark.

Can they get braoder protection :

1. need registration

2 both mark must be similar

3 must have reputation in eu or in country where issued

4 he use without due cause of the mark applied for must lead to
the risk that unfair advantage might be taken of the distinctive
character or the repute of the earlier trade mark or that it might be
detrimental to the distinctive character or the repute of the
earlier trade mark.

 thus must be assed by av consumer of bees brand

Second plea in law :

- BREch of
- Whole argument about legal certainty : court says they are
allowed euipo borad to not be bound by previous deciisons even
if rpeutaiton doe sindeed exist but

- n that regard, it must be considered that, in the event that the

Board of Appeal was fully entitled to find that the marks at issue
are dissimilar, as EUIPO submits, the first plea must necessarily
be

- 51

- 52

- 53

- 54

- 55

- the assessment contained in those decisions also concerns the

earlier mark.

- 56

- rejected, given that one of the necessary conditions in the light

of Article 8(5) of Regulation No 207/2009 will not have been
met. On the other hand, if the Board of Appeal was wrong to
find that the marks at issue are dissimilar or that, in any event,
they could be considered to have only a very low degree of
similarity (paragraphs 33, 34 and 44 of the contested decision),
then the Board of Appeal’s error, established in paragraph 52
above, could have a decisive influence on the outcome of the
application for a declaration of invalidity. In view of the
structure of the contested decision, it is necessary to take into
consideration both of those possibilities.
In the light of the foregoing considerations, it is appropriate to
examine certain questions raised in the context of the first plea,
alleging infringement of Article 8(5) of Regulation No 207/2009, in
order to determine,

- first of all, whether the Board of Appeal was correct to find that
the marks at issue are dissimilar,

- next, whether it was entitled to disregard the reputation of the

earlier mark on the basis of part of the evidence produced by the
applicant and, finally, if appropriate,

- whether its assessment of the conclusions that can be drawn in

particular from a lack of similarity of the goods or services
covered in the present case in the analysis of whether there is a
link between the marks at issue was vitiated by any error.
-

First pleas ALLEDGING INFRINGEMEMNT OF THE ARTICLE 8 5

Assesss :

1 similarity

2 repute of earlier mark

3 if link between sings at issue

Relevant pub L publ at large for lv

For other one :pub t0o quench thirst or eat

Similarity of signs at issue

Assess phonetic and visual spect

- Based on the dominant elemnt

Visual comapriosn of signs : -

- Horizontal letter touches the left bar : approx. halfway up

 - Word are pkkace done above th eohter

- Lv more dominant than power drink : English speaking pub

- More distinctive also in comparisaosn to the classes for eng pub

- Combinaton of stylized letter id disinctintive

- Gen pub relies on imperfect recollection

- t issue. Likewise, the black or black and white colours of the

two letters do not alter that similarity. In that regard, it is
appropriate, in addition, to note that, as the protection of the
earlier mark does not designate any specific colour, as was
confirmed by the parties at the hearing in response to a question
asked by the Court, that protection also extends to combinations
of colours (see,

- follows that, contrary to the Board of Appeal’s finding

(paragraph 28 of the contested decision), the overall impressions
created by the marks at issue do not differ significantly and the
marks must be considered to have at least an average degree of
visual similarity.

Phonetic comapirosn :

blic, the letters ‘l’ and ‘v’ will be pronounced in the same order and in
the first place, both in the earlier mark, of which they are the sole
element, and in the contested mark, of which they are the dominant
par  yes

conceptual comairosn :

the frist one is not really a concept second because of energy drink
thing is a concept : conceptually dssimilar
finding on comapirosn of mark at issu e:

n the light of the foregoing considerations, the Court finds that, at the
very least for the English- speaking part of the relevant public, the
signs at issue, each taken as a whole, have at the very least an average
degree of visual and phonetic similarity. Even if it is assumed that
they are conceptually dissimilar (see paragraph 87 above), it must be
found that, overall, they are similar, contrary to the assessment of the
Board of Appeal in paragraph 31 of the contested decision, and the
degree of similarity is average, not ‘at most very low’, as the Board of
Appeal considered in the alternative in paragraphs 32 and 42 of the
contested decision. It follows that the Board of Appeal erred in its
assessment of the similarity of the signs at issue.

Reputation of the earlie mar k

Under that principle, the acquisition by a sign of distinctive character

and the strengthening of its original distinctive character may arise
from its use as part of a registered mark or in conjunction with a
registered mar
Monogram canvas : lv is reidminat + asspociation with mark Louis Vuitton : srtands out from
3 motifs : connection with logo (for instance Wikipedia

above) that, in the light of the evidence produced by the applicant, the
Board of Appeal conducted an incomplete assessment of the
reputation of the earlier mark and, in addition, distorted the clear
sense of some of that evidence.
Assessment of whther there is a link between the marks at issue:

Borad : stated irst, an important reason for this is the fact that, if the
marks at issue were perceived to be similar, the degree of similarity
would be very low (paragraph 42 of the contested decision). S
- econdly, according to the Board of Appeal, its finding that there
is no link between the marks at issue is borne out by the fact that
the condition to be met for the marks to be potentially similar
was that of the perception of the combination of letters ‘lv’ in
the earlier mark and by the fact that the inherent distinctive
character of combinations of letters is not very strong
(paragraph 43 of the contested decision).

- - Thirdly, the goods or services covered by the marks at issue

are not only entirely different in nature, purpose and method of
use, but, in addition, lack any connection between them and
target completely different sections of the public (paragraphs 44
to 47 of the contested decision).
-

o Cputner : Factors tot ake into account :

- Those factors include: the degree of similarity between the

marks at issue; the nature of the goods or services covered by
the marks at issue, including the degree of closeness or
dissimilarity between those goods or services and the relevant
section of the public; the strength of the earlier mark’s
reputation, and the degree of the earlier mark’s distinctive
character, whether inherent or acquired through use
o  to show link  to detmerine if unfair adva

o Answer :

 Did an incorrect assesmmetn of similarity

 Strength of reputation is imortnant

 Regarding fact that goofs are not similar : actualuy acrticle 8 5 is

condition is based on the fcat that even if they are not similar it applies
: he version applicable to the proceedings (see paragraph 19 above),
specifically and solely provides for a situation in which the goods or
services concerned are dissimilar — a condition of similarity of the
goods or services cannot be imposed. Accordingly, if the nature of the
goods or services concerned is one of the factors that must be taken
into account in the assessment of whether there is a link on the part of
 the public concerned, the lack of similarity between those goods or
services cannot be interpreted as implying that there is no such link

Summary of louis vuton case :

he LV mark (below) is registered in respect of goods in Classes 18 (e.g. Goods made of leather;
bags and 25 (e.g. clothing), among other things.

Contested decision of board of appeal:

- Breach of legal certainty and infirngment of article 75 of regulation n 207/2009

- And article 8(5)

Louis vuitn bee fee : for energy drink

Louis vuton v fulia trading

Vuiton :
Similarity :
- Similar Strength of mark , unfair adv
- Compared visual, phonetic conceptual
o English speaking public : visual and phonetic similarity
o Conceptulay : avergaly
Reputation :
About the canvas on the bags (pattern ) :  that distinctive character may arise from use as part
of a registered mark or in conjunction with a registered mark, if, as a consequence of that
use, that sign may serve to identify, in the minds of the relevant persons, the goods to which it
relates as originating from a particular undertaking.
-  the lv SIGN

The board of appeal erred in its assessment on evidence

Erred also in fidning link : regardless of closness of goods concerned
blic concerned would establish a link between the marks at issue, it first based its analysis on an
incorrect assessment of t)

abvout articie 75:

rd of Appeal decided to take a different view from the one adopted in previous decisions, in
relation to the reputation of the earlier mark, it should have provided an explicit statement of its
reasons for doing so.

a result, the Court found that the Board of Appeal’s assessment as regards the application of
Article 8(5) of Regulation No 207/2009 to be "vitiated by several errors or lacunae, relating to the
comparison of the signs at issue, the existence of the reputation of the earlier mark, the strength of
that reputation, and the importance that must be attached to the lack of similarity of the goods or
services concerned in the present case."(para 112, both decisions)

so similar mark but dissimilar goods and they won

Aceites case :

Appellant : aceites del sur coosur (L espanola )

Vs koipe coporacion rep by mrfernandez ( Carbonell)
Office of harm of int market : j garcia murillo

Court of First Instance of the European Communities of 12 September

2007 in Case T-363/04 Koipe v OHIM – Aceites del Sur (La
Española) [2007] ECR II-3355) (‘the judgment under appeal’), in
which the Court of First Instance allowed the action brought against
the decision of the Fourth Board of Appeal of the Office for
Harmonisation in the Internal Market (Trade Marks and Designs)
(OHIM) of 11 May 2004 (Case R

represented by J. García Murillo, acting as Agent,

THE COURT (First Chamber),

defendant at first instance,

1109/2000-4) (‘the decision at issue’), relating to opposition

proceedings between Koipe Corporación SL (‘Koipe’) and Aceites
del Sur.

LEGAL BACKGROUND :

Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December

1993 on the Community trade mark (OJ 1994 L 11, p. 1) provides:

‘Upon opposition by the proprietor of an earlier trade mark, the trade

mark applied for shall not be registered:

...

(b) if because of its identity with or similarity to the earlier trade mark
and the identity or similarity of the goods or services covered by
the trade marks there exists a likelihood of confusion on the part of
the public in the territory in which the earlier trade mark is protected;
the likelihood of confusion includes the likelihood of association with
the earlier trade mark.’

Article 8(2) of that regulation provides:

‘For the purposes of paragraph 1, “earlier trade marks” means:

trade marks of the following kinds with a date of application for

registration which is earlier than the date of application for
registration of the Community trade mark, taking account, where
appropriate, of the priorities claimed in respect of those trade
marks:

(i) Community trade marks;

(ii) trade marks registered in a Member State, or, in the case of

Belgium, the Netherlands or Luxembourg, at the Benelux Trade Mark
Office;

(iii) trade marks registered under international arrangements which

have effect in a Member State;

Backrgund :
Koipe (aceite carbonell )is the aopelant and they don’t want aceitene la espanola(ohim ) to
create their tm confusion

he Opposition Division of OHIM, however, held that Koipe had

successfully established the existence of only three Spanish
registrations and the Community registration in respect of ‘olive oil’.

he figurative elements,

consisting essentially of the image of a person seated in an olive

grove, had only a weak distinctive character with respect to olive
oil, the effect of which was to confer the utmost importance to the
word elements ‘La Española ‘and ‘Carbonell’.
-As regards, next, the comparison of the signs from a phonetic and
conceptual point of view,

the Fourth Board of Appeal held that Koipe had not denied the
complete absence of similarity between the word elements or
the weakness of the conceptual link between the signs at
issue.

-Finally, whilst acknowledging that the Opposition Division should

have given a ruling on the reputation of the earlier marks, it took
the view that that assessment, together with the examination of
the documents produced before the Board of Appeal to establish
that reputation, were not strictly necessary, since one of the pre-
conditions for determining a likelihood of confusion with a mark
which has a reputation or is well-known, that is the existence of a
similarity between the signs, was not in any event satisfied.
The proceedings before the court of first isnatcne and the judgeemmt under aqppeal :

first, infringement of Article 8(1)(b) of Regulation No 40/94 and,

secondly, infringement of the obligation for OHIM to examine the
evidence of the reputation of the earlier mark.

e whether the right of opposition claimed by Koipe existed or not.

That dispute concerned in particular the fact that, in the view of
OHIM and Aceites del Sur, since the date on which the Community
registration was filed was later than the date on which the mark
for which registration was sought was file (so they registered in
the EU after OHM had filed their registration reuest right ???)
court rejectedthat argument

The decision [at issue] is based essentially on the lack of similarity

between the figurative element of the Carbonell mark and that of the
mark applied for. The figurative element of the Carbonell mark is
identical in all the registrations relied on by [Koipe], both in those
taken account of by the Board of Appeal and in those which it
excluded.’
However, in the view of the Court of First Instance, the reasons why
the Board of Appeal made that finding were not explained and the
latter failed to mention any mark, other than those in dispute,
containing a figurative element similar to the one used by those
marks.
 first apela : cant conclude that it had a wek character

ourt of First Instance held that the figurative element holds a more
important position, in terms of surface, than the word element.

ith regard to the similarity of the marks and the likelihood of

confusion, at paragraph 103 of the judgment under appeal the Court
of First Instance held that:

‘The Court considers that the elements common to the two marks at
issue, seen as a whole, produce an overall visual impression of great
similarity, since the La Española mark reproduces very precisely the
essence of the message and the visual impression given by the
Carbonell mark: the woman dressed in traditional clothes, seated in a
certain manner, close to an olive branch with an olive grove in the
background, the overall image consisting of an almost identical
arrangement of spaces, colours, places for brand names and style of
lettering.

of the consumer to a likelihood of confusion between the marks at

issue and that that likelihood of confusion was not diminished by the
existence of the different word element since the word element of the
mark applied for had a very weak distinctive character, as it referred
to the geographical origin of the goods.
 so word element is not that important

ourt of First Instance held at paragraphs 108 and 109 of that judgment
that olive oil is a consumer product which is very common in Spain,
and that in the particular circumstances in which that product is sold
the figurative element of the marks at issue acquires greater
importance, which increases the likelihood of confusion between the
two marks at issue.
So they lost and koipe won :

NOW THE CASE IS OHIM(carbonell ) APPELAING VS KOIPE (la espanola )

Appleant wants to set aside the previous appeal vs koipe wants to dismiss the appeal

The appeal :

The first ground alleges infringement of Article 8(1) and (2)(a)(i) and
(ii) of Regulation No 40/94. T

he second ground, which comprises two parts, alleges infringement of

Article 8(1)(b) of that regulation.

THE FIRST RGOUND OF APPEALA DN THE FIRST PART OF

THE SECOND GROUND OF APPEAL :

Which are earlier m

 BRING THE ARG : that later tm registered in EC is after their

own submitted registration

and OHIM contend that the appellant seeks to attribute to the wording
of paragraphs 47 and 48 of the judgment under appeal a
disproportionate significance and scope, since, contrary to what the
appellant claims, the Court of First Instance did not hold that the
Community registration constituted an earlier right for the purpose of
exercising the right of opposition and did not attribute any value to it
when considering the existence of a likelihood of confusion between
the marks at issue. The true position is that in that judgment the
Court of First Instance assessed only whether there was a
likelihood of confusion between those marks solely in ‘Spain’ and
on the ‘Spanish market’.
he Court of First Instance improperly took that registration into
consideration and, consequently, incorrectly delimited the

order Koipe and OHIM to pay the costs.

36

37

38

relevant public and territory, assessing the likelihood of confusion on

the part of the public in the Community and not on the part of the
public in Spain.

oipe and OHIM respond in essence that when the Court of First
Instance assessed the distinctive character of the figurative and
word elements of the marks at issue it did so specifically in order
to resolve the issue of whether there existed a likelihood of
confusion between those marks in Spain. They add that in the
context of that assessment the Court clearly and correctly limited
its assessment of the relevant public and territory to that Member
State.

SO IT SHOULD HAVE BEEN EU WIDE GEN PUB ?

Summary of aceite la espanola :

1st instance :

The decision [at issue] is based essentially on the lack of similarity between the figurative
element of the Carbonell mark and that of the mark applied for. The figurative element of the
Carbonell mark is identical in all the registrations relied on by [Koipe], both in those taken
account of by the Board of Appeal and in those which it excluded.’
- First Instance held that the figurative element holds a more important position, in
terms of surface, than the word element

- The Court considers that the elements common to the two marks at issue, seen as a
whole, produce an overall visual impression of great similarity, since the La Española
mark reproduces very precisely the essence of the message and the visual impression
given by the Carbonell mark: the woman dressed in traditional clothes
 - consumer to a likelihood of confusion between the marks at issue and that that
likelihood of confusion was not diminished by the existence of the different word
element since the word element of the mark applied for had a very weak distinctive
character, as it referred to the geographical origin of the goods.
- very common in Spain, and that in the particular circumstances in which that product
is sold the figurative element of the marks at issue acquires greater importance, which
increases the likelihood of confusion
- the light of those principles, the Court of First Instance held in particular, at paragraphs 108
and 109 of the judgment under that appeal, that olive oil is a consumer product which is very
common in Spain, that it is most commonly purchased in su-permarkets or establishments
where goods are arranged on shelves and that the consumer is guided more by the visual
impact of the mark he is looking f
? rinciple that a later mark may be relied upon against an applica-tion for registration of a mark that
has been filed earlier.??????????

Findings of court :
RAEgrading 1st claim :
- Must be done eu wide : visual aural and conceptual similarity must be based on
distinctive and dominant components
- the overall impression created in the mind of the relevant public
by a complex trade mark may, in certain circumstances, be
dominated by one or more of its components. However, it is
only if all the other components of the mark are negligible that
the assessment of the similarity can be carried out solely on the
basis of the dominant element (

- 1st appeal court said it ewas the figurative elemtnt he dominant

- But stil impact of the world element

- I ghiess the court is saying that actualy 1st instance also took into account the word
(because I guess carbonnel said they didn’t take into account word )

- seen as a whole, produced an overall visual impression of great

similarity, since the La Española mark reproduced very
precisely the essence of the message and the visual impression
given by the Carbonell mark, thus inescapably giving rise to a
likelihood of confusion on the part of the consumer between
those mark
(On the contrary, it is precisely in the context of the assessment of that
element that the Court of First Instance described it essentially as
negligible, on the ground, in particular, that the differences between
the word signs of the marks at issue do not invalidate the conclusion it
reached after the comparative examination of those marks from the
visual point of view.
o  rule indeed even the 1st instance court did a global assessmenmt

SECOND CLAIM :
so, with regard to the appellant’s argument challenging the
description of the Spanish consumer of olive oil given by the Court
of First Instance, it must be stated first of all that the latter’s
assessment in that regard complies with the settled case-law of the
Court of Justice on that subject.

 SO EYS SPANISH CONSUMER KNOWS HIS OLIVE OIL  FIGIURATIVE

ELEMNT IMPORTANT : AMRK SEEN AS A WHOLE

SUB SECOND :

s regards the appellant’s argument concerning the findings made by

the Court of First Instance with regard to the average consumer’s
level of attention, it must be observed that it relates exclusively to
factual elements.

ECxclusove jruisdciton to make findings of fact : limit save

where a substantive
inaccuracy in its findings is attributable to the documents submitted to
it, and to appraise those fact

 ehre there was no distortion of evidence

Lasl;ty the appellant’s claims that, in failing to take into account, in

the judgment under appeal, the earlier coexistence of the marks at
issue over a long period on the Spanish market for olive oil and
their reputation on that market, the Court of First Instance did not
properly evaluate the element of similarity between those marks,
those arguments cannot be accepted. (so the arg is that they have
been togther gfor a while so consumer is sued to it so not confused )

CJEU : outcome would not have changed

- If ther eis a long coexistence hence less confusin there are

condition for this argument to be valid :

o Based on peaceful coexistence : NOT THE CASE

THEY HAVE BEEN DISPUTING SIMILIARUTY
FOR A WHILE NOW

SEOCND : regarding reputation

st be recalled that it is the reputation of the earlier mark, in this case

the Carbonell mark, which must be taken into account when
determining whether the similarity between the goods covered by the
two marks is sufficient to give rise to the likelihood of confusion 
so la espanola cant use its own reputation (ohim )
(WAITTTTTT CARBONEEELLL WAS THE OG (koipe )AND THEN LA ESPANOLA
CAME

Moreover, as regards the reputation of the latter mark, the appellant

does not explain how the Court of First Instance, if it had considered
that element, could have attributed an enhanced distinctive character
to the La Española mark and thereby excluded the existence of a
likelihood of confusion between those marks. (whaaattt)

Apopeal dismissed

Procedural :
n those circumstances, it is clear that those considerations do not
constitute a cross-appeal and there is therefore no need for the Court
to make a ruling on this point.

Dismisses the appeal;

Orders Aceites del Sur-Coosur SA to pay(la espnaola ), in

addition to its own costs, those of Koipe Corporación SL;

Orders the Office for Harmonisation in the Internal Market

(Trade Marks and Designs) (OHIM) to bear its own costs.

Schappes case :
Some contect :
pARALLEL IMPORTS
Genuine, trade marked goods are produced by a trade mark owner or its appointed
manufacturer. A manufacturer can choose to supply their goods to different countries
through different authorised channels, which can result in similar goods being supplied
for different prices. They may also grant a license to a local manufacturer, to distrubute
genuine goods, which may include the assignment of the local trade mark to that local
distrubutor.
When a genuine good is imported into Australia through channels not authorised by the
manufacturer, it is called a parallel import. This is in contrast to counterfeit goods or
pirated goods, which are not made by an authorised manufacturer.
There are drawbacks to parallel importing - if the goods are faulty or misrepresented
under the Australian Consumer Law, there may be little redress for consumers.
nother key change in the Act is referred to as ‘exhaustion of rights’. This means that
the use of a trade mark in relation to goods is not an infringement of the trade mark
owner’s rights over the mark, if the goods have been put on the market with the consent
of the trade mark owner under the registered trade mark.
As such, the trade mark owner’s rights are exhausted and unenforceable following the
authorisation of a local distributor to use the mark in another country, or the assignment
of their right to the mark. This essentially removes any territorial limits which were
previously applied.

f a registered trade mark and then, either acting alone or in co-ordination

with the “new” owner of the mark, continues to promote the appearance of
a single global trade mark, the protection provided by its retained national
trade mark rights is reduced. That party cannot use its national trade mark
to oppose the importation from another Member State of identical goods
bearing the same mark.

f a registered trade mark and then, either acting alone or in co-ordination

with the “new” owner of the mark, continues to promote the appearance of
a single global trade mark, the protection provided by its retained national
trade mark rights is reduced. That party cannot use its national trade mark
to oppose the importation from another Member State of identical goods
bearing the same mark.

en if the owner of the retained national trade mark has not promoted the
appearance of a single global trade mark, it cannot use its retained rights to
oppose the importation where there are economic links between it and the
“new” owner and they have in some way co-ordinated their commercial
policies or agreed some form of joint control over the use of the trade mark.

he CJEU also justified its decision by explaining that the essential function
of a trade mark is to guarantee the identity of origin of the trade
marked product.  Where a trade mark owner (here Schweppes in Spain)
has itself blurred that guarantee, by allowing identical marks in different
territories to be controlled by different entities, it cannot complain that
consumers will not be able to tell which company is the originator (ie.
manufacturer) of the product on sale.

‘(1)

(2)

(3)

(4)

Is it compatible with Article 36 TFEU and with Article 7(1) of

Directive 2008/95 and Article 15(1) of Directive [2015/2436] for the
proprietor of a trade mark in one or more Member States to prevent
the parallel importing or marketing of goods coming from another
Member State which bear a trade mark that is identical or practically
identical and is owned by a third party, when that proprietor has
promoted a global trade mark image that is associated with the
Member State from which the goods whose import it seeks to
prohibit originate?

Is it compatible with Article 36 TFEU and with Article 7(1) of

Directive 2008/95 and Article 15(1) of Directive 2015/2436 for goods
to be sold under a trade mark, which is well known, within the
European Union when the registered proprietors maintain
throughout the EEA a global trade mark image which gives rise
to confusion in the minds of average consumers concerning the
commercial origin of the goods?

Is it compatible with Article 36 TFEU and with Article 7(1) of

Directive 2008/95 and Article 15(1) of Directive 2015/2436 for the
proprietor of identical or similar national trade marks registered in
various Member States to oppose the importation into a Member State
where it owns the trade mark of goods, bearing a trade mark identical
or similar to its own, coming from a Member State in which it is not
the proprietor, when in at least one other Member State where it
is ... the proprietor of the trade mark it has expressly or tacitly
consented to the importation of those same goods?

Is it compatible with Article 7(1) of Directive 2008/95 and Article

15(1) of Directive 2015/2436 and with Article 36 TFEU for the
proprietor A of a trade mark X registered in one Member State to
oppose the importation of goods bearing that trade mark if those
goods come from another Member State where a trade mark Y,
identical to trade mark X, belongs to another proprietor B which
markets it and:

proprietors A and B maintain intense commercial and

economic relations, although, strictly speaking, there is no
dependency between them regarding the joint exploitation of trade
mark X;

– proprietors A and B maintain a coordinated trade mark strategy

deliberately promoting is-à-vis the relevant public an appearance
or image of a single global trade mark; or
proprietors A and B maintain intense commercial and economic
relations, although, strictly speaking, there is no dependency
between them regarding the joint exploitation of the trade mark
X, and in addition they maintain a coordinated trade mark strategy
deliberately promoting vis-à-vis the relevant public an appearance or
image of a single global trade mark?’

hus, by its four questions, which it is appropriate to examine together,

the referring court asks, in essence, whether Article 7(1) of Directive
2008/95, read in the light of Article 36 TFEU, must be interpreted as
precluding the proprietor of a national trade mark from opposing
the import of identical goods bearing the same mark originating
in another Member State in which that mark, which initially
belonged to that proprietor, is now owned by a third party which
has acquired the rights thereto by assignment, when one or more of
the following elements are present:

– the proprietor has promoted a global trade mark image associated

with the Member State of origin of the goods whose import it seeks to
prohibit;

- the proprietor and the third party maintain a coordinated trade

mark strategy deliberately promoting, throughout the EEA, the
appearance or image of a single global trade mark;

the single global trade mark image thus provided gives rise to
confusion on the part of the average consumer as to the
commercial origin of the goods bearing that mark;

the proprietor and the third party maintain close commercial and
economic relations, even if, strictly speaking, there is no
dependency between them regarding the joint exploitation of the
mark;

the proprietor has expressly or tacitly agreed that the same goods
as those whose import it seeks to prohibit may be imported into
one or several other Member States where it still holds trade mark
rights ‘

Under Article 7(1) of Directive 2008/95, a trade mark is not to

entitle the proprietor to prohibit its use in relation to goods which
have been put on the market in the European Union under that
trade mark by the proprietor or with his consent.
Tm exhaustion :

ognised in EU law the principle that trade mark rights may be

exhausted. It thus reiterates the case-law of the Court to the effect that
a person holding trade mark rights protected by the legislation of a
Member State may not rely on that legislation in order to oppose the
import or marketing of a product which has been put into circulation
in another Member State by him or with his consen

r the trade mark to be able to play that part, it must offer a guarantee
that all the goods which bear it have been manufactured under the
control of a single undertaking that may be held accountable for the
quality of those goods

reover, the Court has emphasised that the decisive factor is the
possibility of control over the quality of the goods, not the actual
exercise of that control. In that context, it has observed by way of
example that, if the licensor tolerates the manufacture of poor quality
goods by the licensee, despite having contractual means of preventing
it, he must bear the responsibility. Similarly, if the manufacture of
goods is decentralised within a group of companies and the
subsidiaries in each of the Member States manufacture goods whose
quality is geared to the particularities of each national market, those
differences in quality may not be invoked in order to oppose the
import of goods manufactured by an affiliated company, as the group
must bear the consequences of its choice

ndeed, if such proprietors were permitted to protect their

territories against the parallel import of those goods, that would
lead to a partitioning of the national markets which is not
justified by the purpose of trade mark rights and is, in particular,
unnecessary in order to preserve the essential function of the
marks concerned.

Ruling :

In the light of all of the foregoing, the answer to the questions referred
is that Article 7(1) of Directive 2008/95, read in the light of Article 36
TFEU, must be interpreted as precluding the proprietor of a
national trade mark from opposing the import of identical goods
bearing the same mark originating in another Member State in
which that mark, which initially belonged to that proprietor, is now
owned by a third party which has acquired the rights thereto by
assignment, when, following that assignment

roprietor, either acting alone or maintaining its coordinated trade mark

strategy with that third party, has actively and deliberately continued
to promote the appearance or image of a single global trade mark,
thereby generating or increasing confusion on the part of the public
concerned as to the commercial origin of goods bearing that mark,

here exist economic links between the proprietor and that third party,
inasmuch as they coordinate their commercial policies or reach an
agreement in order to exercise joint control over the use of the trade
mark, so that it is possible for them to determine, directly or
indirectly, the goods to which the trade mark is affixed and to control
the quality of those goods.

KitKat case :
3 appeals joined :
- Nestle
- Mondelez
- EUIPO
VS : cadburry
- Another modnelz
- Are the 3 parties
Def : EUIPO
Judgement :
On no basically its EUIPO and nestle on one side saying that the mark should be kept cuz its
distinctive for kitkat vs Mondelez saying it does not have distincive character : Not all EU
MS
- Euipo and nestle aere basially asking for the genrla court to set aside the previous
courts judgement stating that the market can’t be a trademark.

EUIPO must reconsider whether the three-dimensional shape of a ‘4 Finger

KitKat’ can be retained as an EU trade mark

EUIPO registered the mark in respect of the following goods: ‘Sweets; bakery products; pastries;
biscuits; cakes; waffles’.

Cadbury Schweppes (now Mondelez UK Holdings & Services) filed an application with EUIPO for a
declaration of invalidity of the registration. In 2012, EUIPO rejected that application; it took the view
that Nestlé’s mark had acquired distinctive character through the use that had been made of it
in the EU

the General Court annulled EUIPO’s decision.

It considered that EUIPO had erred in law in finding that the mark at issue had acquired distinctive
character through use in the EU

cquired distinctive character through use in ten countries (Denmark, Germany, Spain, France, Italy,
the Netherlands, Austria, Finland, Sweden, and the UK), the General Court held that EUIPO could not
validly conclude its examination without ruling on the relevant public’s perception of the mark in four
other Member States in particular (Belgium, Ireland, Greece and Portugal) a

(nestle and euipo want distinctiveness 0

Nestlé and EUIPO submit that the General Court was wrong to hold that the proprietor of an EU trade
mark must show that that trade mark has acquired distinctive character through use in each of the
Member States separately.

rt holds, first of all, that Mondelez’s appeal must be rejected as inadmissible, as it does not
seek to have the operative part of the judgment under appeal set aside, but only requests that certain
grounds of that judgment be amended.

The Court refers to its case-law, according to which a sign without inherent distinctive
character can be registered an as EU trade mark only if it is proved that it has acquired
distinctive character in the part of the EU in which it did not previously have such character.

ary to distinguish between the facts to be proved, namely the acquisition of distinctive character
through use by a sign that is devoid of inherent distinctive character, and the means of proving such
fact : that the regulation does not require that the acquisition of distinctive character through
use be established by separate evidence in each individual Member State.
onomic operators have grouped several Member States together in the same distribution network
and have treated those Member States, especially for marketing strategy purposes, as if they
were one and the same national market. In such circumstances, the evidence for the use of a sign
within such a cross- border market is likely to be relevant for all Member States concerned.

t is not necessary, for the purposes of registering a mark that was formerly devoid of
distinctive character, that evidence of the acquisition by that mark of distinctive
character through h use be submitted in respect of each individual Member State, the
evidence submitted must be capable of establishing such acquisition throughout the
Member States of the EU in which that mark was devoid of inherent distinctive
character.

Therefore, the Court upholds the General Court’s judgment in which the latter held that the
acquisition of distinctive character by a mark that was initially devoid of inherent distinctive character
must be shown throughout the EU, and not only in a substantial part of the territory of the EU, and
consequently, although such proof may be produced globally for all the Member States or groups
of Member States, it is not, however, sufficient that the party with the burden of providing such
evidence produces only evidence that fails to cover part of the EU, even a part consisting of only one
Member State.

Embryo case:

1
he Directive on the legal protection of biotechnological inventions provides that uses of
human embryos for industrial or commercial purposes are considered unpatentable

These proceedings offer the Court of Justice an opportunity to

consider, again, the meaning of ‘human embryos’ in Article 6(2)(c) of
Directive 98/44/EC of the European Parliament and of the Council of
6 July 1998 on the legal protection of biotechnological inventions
(‘the Directive’).

gst others, whether ‘unfertilised human ova whose division and

further development have been stimulated by parthenogenesis’ are
included in the term ‘human embryos’ in the sense of Article 6(2)(c)
of the Directive. The Court of Justice answered this question in the
affirmative. Struggling with that answer, the referring court’s only
question in the present case inquires whether the ruling in Brüstle
applies in relation to those parthenogenetically activated unfertilised
human ova even in light of the following specification: ‘which, in
contrast to fertilised ova, contain only pluripotent cells and are
incapable of developing into human beings’.
I- ;egal framework :

Trips ;

2. Members may exclude from patentability inventions, the

prevention within their territory of the commercial exploitation of
which is necessary to protect ordre public or morality, including to
protect human, animal or plant life or health or to avoid serious
prejudice to the environment, provided that such exclusion is not
made merely because the exploitation is prohibited by their law.’ (6)

ticle 52(1) of the Convention on the Grant of European Patents

(European Patent Convention, ‘EPC’) of 5 October 1973, (7) to which
only the Member States, but not the European Union itself are parties,
reads:

‘European patents shall be granted for any inventions, in all fields of

technology, provided that they are new, involve an inventive step and
are susceptible of industrial application.’

8. Article 53(a) of the EPC provides:

‘European patents shall not be granted in respect of:

(a) inventions the commercial exploitation of which would be

contrary to “ordre public” or morality; such exploitation shall not be
deemed to be so contrary merely because it is prohibited by law or
regulation in some or all of the Contracting States.’

n organism which is incapable of developing into a human being does not constitute
a human embryo within the meaning of the Biotech Directive

Accordingly, uses of such an organism for industrial or commercial purposes may, as a rule,
be patented

Brustle case :

That human embryo here it was indeed human

Decision of the second board of appeal :
In an application field at the office on 11 decemebr 1996:
- Smell of fresh cut grass for goods

Antitrust:commission opens formal investigation into possible anticompetitive

conduct of TEVA in relation to a blockbuster multiple sclerosis medicine :

Teva has illegally delayed the market entry and uptake of medicines that compete with its
blockbuster multiple sclerosis drug Copaxone.

decided to launch an in-depth investigation into whether Teva may have abusively blocked or
delayed the market entry of competitors to its blockbuster drug Copaxone, to the detriment of
patients and health systems”.

The Commission will investigate whether, following the patent expiry, Teva may have
artificially extended the market exclusivity of Copaxone by strategically filing and
withdrawing divisional patents, repeatedly delaying entry of its generic competitor who
was obliged to file a new legal challenge each time

- Divisional patents originate from a broader “parent” patent and may cover
significantly overlapping inventions, sometimes allowing the patentee to multiply the
patent barriers that a generic competitor needs to overcome to enter the market.
- he Commission will also examine whether Teva may have pursued a communication
campaign to unduly hinder the use of competing glatiramer acetate products.
- may have targeted competing products to create a false perception of health risks
associated with their use

proven, Teva's behaviour may amount to an abuse of dominant position and infringe
Article 102 of the Treaty on the Functioning of the European Union (TFEU) and
Article 54 of the European Economic Area (EEA) Agreement.

Article 102 of the Treaty of the Functioning of the EU prohibits the abuse of dominant
market positions. The implementation of these provisions is defined in the EU's Antitrust
Regulation (Council Regulation No 1/2003), which is also applied by national competition
authorities.

Australia news code: What’s this row with Facebook and

Google all about?
hat would force tech giants Facebook and Google to pay for news content in
Australia is being keenly watched worldwide.
The world-first law aims to address the media's loss of advertising revenue to US
tech firms.

But the tech firms have pushed back, with Facebook restricting news content in
Australia.

 52% of Australians questioned in a survey used social media as a source of news.

Facebook ranked top as a social media news source, followed by YouTube and
Facebook Messenger.

imbalance of power between tech firms and the media.

The law would enable news companies to negotiate as a bloc with tech firms for content
which appears in their news feeds and search results.

The government says the code will initially focus on Google and Facebook, but could
be expanded to other tech companies.

government has argued that tech giants should pay newsrooms a "fair" amount for
their journalism

eeded for Australia's embattled news industry because a strong media is vital to
democracy.

have lobbied hard for the government to force tech firms to the negotiating table
amid a long-term decline in advertising revenue.

book, however, argues "the value exchange between Facebook and publishers
runs in favour of the publishers", according to its manager for Australia and New
Zealand, William Easton, and generates hundreds of millions of dollars of revenue
for the media.

or every $100 spent on online advertising, Google captures $53, Facebook takes
$28 and the rest is shared among others, taking revenue away from media outlets.

Fcaebook recation :
Has stopped news sharing

 "fundamentally misunderstands the relationship between our platform and publishers".

Facebook said the legislation had left it "facing a stark choice: attempt to comply with a law
that ignores the realities of this relationship, or stop allowing news content on our services in
Australia".

Google reaction:
Google has threatened to remove its search engine from Australia if the proposed law is
passed.
But Google has now said it has agreed to pay Mr Murdoch's News Corp for content from
news sites across its media empire
ews Corp said it and Google would collaborate on a subscription platform, share
advertising revenue and invest in video journalism on YouTube.

has also announced deals with several other Australian media companies, including
a reported A$30m annual payment to Nine Entertainment.
Could this be a global precedent:

Can this be global precedent ;

Microsoft has thrown its support behind the proposed law.
"The code reasonably attempts to address the bargaining power imbalance between digital
platforms and Australian news businesses," the software firm said in February.

A controversial new EU rule on copyright says that search engines and news aggregators
should pay news sites for links.
In France, publishers recently agreed a deal with Google on how that should work.

And there have been other areas of tension between governments and big tech
firms, where governments or blocs such as the EU have looked into regulating the
firms in question

The boundaries of an undertaking :

Part B : examining some of the core cases which establish how the notion of an und3rtaing is
applied to natural persons, legal epersons and group of persons

Part C: the immplications of the case law are assessed and it is considered both whether the
cases support the view that there is a single concept of an undertaking which applies
throughought EU com[eittion law and/or whther such an approach is desirable.

Part D: discusses whther there is a need for a more holistic approach to be taken to concept of
an undertaking

B. indeitfying an economic unit and its boundaries:

1. Natural persons, legal persons and groups of persons:
- undertaling may rnage from a single individual to two or more companies whihtin a
coproate group
May comprise natural persons, legal eprosns , and groups of persons cocneot of an
undertaking is aimed at econ units
e concept of an undertaking is aimed at economic units “which consist of a unitary
organization of personal, tangible and intangible elements which pursues a specific economic
18
aim on a long-term basis and can contribute to the commission of an infringement”.

21
urther, legal persons, such as companies and partnerships, although made up of a collection
of individual persons, may also be undertakings.

The cases do not seem to look behind the legal personality but treat individuals working
within the legal person, and not accepting individual risk, as constituent elements of it.

Agency :

On the contrary, it is clear that one or more legal persons designating an economic unit can
constitute a single undertaking. For example, the close economic links which exist in many
relationships between principal and agent have led the Court of Justice (“CJ”) to recognise
that an independently owned agent may lose its character as an independent trader and
2
operate as an auxiliary organ “forming an integral part of the principal's undertaking”

Parent subsidiary relations:

The CJ has also held that, in the context of parent-subsidiary relationships, entities will
27
constitute a single economic unit if a subsidiary “enjoys no economic independence” or if
the entities “form an economic unit within which the subsidiary has no real freedom to
determine its course of action on the market”

Rolex case:
In January 2010 Mr Blomqvist, a resident of Denmark, ordered a watch described as a Rolex
from a Chinese online shop. The order was placed and paid for through the seller's English
website and the watch was posted to him from Hong Kong. On its arrival in Denmark,

the parcel was inspected by the customs authorities: they suspended customs clearance,
suspecting that it was counterfeit and that it infringed copyright, and told both Rolex and
Blomqvist accordingly.

, Rolex sought the continued suspension of customs clearance, established that the watch was in
fact counterfeit and then asked Blomqvist to consent to its destruction

lished that Blomqvist bought the watch for personal use, something that infringed neither Danish
copyright nor trade mark law, and there being no apparent "distribution to the public" or "use in
the course of trade", the court decided to stay the proceedings and to refer the following questions
to the Court of Justice for a preliminary rulin

They asked whether or not the mere purchase from a website in a third country outside
the EU is enough to constitute distribution to the public or use in the course of trade,
when the goods are sent to a private purchaser with an address known to the vendor in
a member state where the goods are protected - or if it is also a condition that the goods
prior to the sale have been the subject of advertisement targeted at consumers in the
member state in questio

The CJEU gave its verdict, determining that the legislation must be interpreted as meaning
that the holder of an IP right over goods sold to a person residing within a member state
through an online shop in a non-member state enjoys the protection already by virtue of the
purchase of the goods.

ouncil Regulation ... 1383/2003 ...  must be interpreted as meaning that the holder of an
intellectual property right over goods sold to a person residing in the territory of a Member State
through an online sales website in a non-member country enjoys the protection afforded to that
holder by that regulation at the time when those goods enter the territory of that Member State
merely by virtue of the acquisition of those goods. It is not necessary, in addition, for the goods at
issue to have been the subject, prior to the sale, of an offer for sale or advertising targeting
consumers of that State.

Summary :
he Supreme Court therefore asked the CJEU whether the sale and dispatch of the
watch to a private purchaser with an address in Denmark known to the vendor had
been a 'distribution to the public' under Article 4(1) of the Copyright Directive or '[use]
in the course of trade' under Article 5(1) and (3) of the Trade Marks Directive or
Article 9(1) and (2) of the CTM Regulation. It also asked whether, prior to the sale,
the watch must have been the subject of an offer for sale or advertising targeting
consumers in the Member State in question.

CJEU said ::
opyright Directive, 'distribution to the public' must be considered proven where a
contract of sale and dispatch to a member of the public has been concluded

United brands v commission ;

(it’s a case of refusal to supply in situations not involving upstream/ downstream markets : )

Facts :
Refusal to supply where the issue is not of vertical foreclosure of competitors in downstream
markets are not covered in the refusal to supply section of guidance paper
 supply of products for distribution or resale and a dominant firm protecting it commercial
interests.

In united brand : UBC had abused its dominant position on banan market by refusing to
supply Chiquita bananas to its danish ripener/ distributor. Oelsen, ibecause it took part
in an ad and promotion campaign for dole banans . Oelsen was not under an exlcusive
purchasing obligation ,\
Oelsen was not under an exclusive purchasing obligation , but UBC argued that Oelsen had
sold fewer and fewer chiqitas in contrast tp doles ,  less trouble in ripening them
CJ said violation of articl;e 102
See page 622 of book in pdf 520 in real book
‘suych behavior cannot be counternaced if its actual purpose is to strneghten this dominant
postion and abuse it
Proportional ?

This would deter other disitrbutors

 interferes with independence of small and mediu sized firms  serious adverse effect on
competition

It was in the mdist of a banan war

Guidance paper para 75-90

Coty case :
Luxury brands may restrict distributors in a selective dsitirbution network from selling their
goods through third party online platforms such as amazon and ebay  provded that it is
necessary to preserve the luxury image of their brand

- Amazon ebay seen as incompatible with brands desired selective dsitributionmoels for
resale of their products
- Luxury brands have relied on EC guidleines on vertical retsarints :
o Limit distriitors third party online platforms which provide that
 where the distributor's website is hosted by a third party platform, the
supplier may require that customers do not visit the distributor's website
through a site carrying the name or logo of the third party platform”
(paragraph 54).
- Diminishes the luxcure image of their prodcuts
o National case law on this varies :
 Germnay called it a hardcoe restraint : addias case banning
o Coties says otherwise

- Coty owns leading brands of luxury cosmnetic prodcuts.

- They are distributed in Europe via a selective distribution network under unirom
terms
- Coty’s authorized sitributors must not retail online using a different bsuienss name or
through a htrid party website , third party is not an authorized retailer .
o This would prevent amazon and ebay
o A dsit parfumeria akzente refused  sold coty prodcust through amazon
o Coty launched suit
o First instance refused :
  e Court of First Instance (Landgericht Frankfurt am Main) refused on the
grounds that Coty’s selective distribution network was unjustified and that
the specific restrictions on online sales constituted a hardcore restriction
which could not benefit from the EC’s Vertical Agreements Block
Exemption Regulation (330/2010) (VABE) or from an individual exemption
- CJEU :
- U broadly agreed with Advocate-General Nils Wahl's Opinion that luxury brands may
prohibit authorised distributors in a selective distribution system from using in a
discernable manner third-party online platforms to sell the brand's goods.
o Aura of luxury
o Differne than piewrre fabre :
 Pierre fabre was an absolute ban
 Here it is a prohibition on authorized dist on a selective dist network
 that provision is necessary to preserve the image of the luxury
products;
 it is determined in a uniform fashion and applied without
distinction; and: hird-party online platform bans are not absolute
bans on online sales. During its e-commerce inquiry, the EC
found that most internet sales are made through distributors’ own
websites and that online platforms are not necessarily a
significant distribution channel.

 it does not go beyond what is necessary.: NOT A HARDOCRE
RESTCITION :
o Provisions which restrict sales channels do not limit the
customers to whom the distributor can sell, or the territory
in which these sales may be made. F
o

-
Eturas case :
Boundaries on notion of agreement

- Lithuanian preliminary reference

- Case originates in a preliminary reference rom the lithunaina supreme court.
- Travel agents coordinated he discounts applicable to clients
- This coordination happned via an online travel booking system
- Does a common electronic platform facilitate collusion ?
Fcats :
- Director of eturas sent email to traveling agewncies , abse don their wishes disocunts
caped at 3%: only consulted in ‘information messages’
- e message either) and, subsequently
- a technical restriction was set in the E-TURAS system (integrated in the websites of the agents)
limiting to a maximum 3% the discounts available for online bookings (the technical restriction did not
preclude larger individual discounts, but those required additional technical actions)
-  found infringement since it says that agents did not distance themselves from the
initiative. They could have reasonably assumed that others had received the same
message and they could abide by it.
- ational competition authority found an infringement as it observed that agents had not publicly
distanced themselves from the initiative, could have reasonably assumed that others had received
 the same message and were likely to abide by it, and it inferred that agents had previously discussed
these actions

JUDGEMENT :
Questions :
at a message was sent enough to establish that its addressees became or should have become aware of its
content, and that by not opposing it they acquiesced in a way that would make them liable under the competition
rules?
anies are to determine their behavior autonomously (27) and that “passive modes of participation” (i.e.
complicity/facilitation) are also caught by Art. 101 (and refers here to the recent Judgment in Treuhand (28

- autonomous conduct :
- passive modes

here its about an evidencial issue :

ereas there is a presumption that companies take into account the info exchanged with others for determining
their behavior (33, citing the infamous T-Mobile), the question posed by the national Court is not really about
that, but rather about an evidential issue (34).

Orinciples of effectiveness and unifmroity :

- whther preusption of innocence applies :
o s in the case at issue, the national Court has doubts as to whether the travel agents became or
must have become aware of the content of the system notification, then the presumption of
innocence applies, in the sense that the mere sending of the notification cannot be in itself
enough to infer awareness of its content (38-39). It could nonetheless be used in combination
with other objective and consistent indicia to establish a rebuttable presumption of
awareness (40).
o -> can show that they didn’t recive the message

Second question: basically how to prave there is collusion if nort enough evidence what
elemnts we shoud look at :
 the event of a negative reply to the first questions, what elements should be taken into account in
determining whether undertakings participating in a common system like the one at issue take part in a
concerted practice?

Concerted practice = elemnt of concertation + an ensing behavior on the market + (both

elemnts must have causality )

Deduction :
) - those agents that were aware of the content of the system  be presumed to have tacitly acquiesced provided
that the other elements (behavior + causal link) are met and thus be liable as from the moment of reception
- But if not awarenessof agent then can tb be presumed to be part of concerted practice

- Plus you can rebut :

o if you send message to eturas administrator

o or public distancing :

concusion from kluwater s:

The CJEU confirmed that actual knowledge was required for an infringement to exist.
The transmission of the administrator message alone was not sufficient to give rise to
a presumption of knowledge, but knowledge could be inferred from “objective and
consistent” indicia.  Further, the presumption of participation could be rebutted if a
travel agency had sent a clear objection to the administrator or had consistently
offered discounts greater than the level of the common restriction.

. Although far from the archetypal “behind closed doors” cartel meeting,
the Eturas decision demonstrates how information technology can distort markets in
the digital space.

Cases for article 102?

Facebook WhatsApp merger case?

On the basis of Article 4(5) of the EU Merger Regulation
- market for consumer communication services:
o the Commission viewed consumer communication service apps as a recent fast-
growing sector,
 market share s: ephemeral , not indicative of market power
 network effects not barriers
 multi homing ohenomenon : comm apps are free not much space : easy
to siwcth apps
 not close copetitiors : differen tfxlities
 concerntation does not have singifiant effect : facebboko both
whasapp jus phone + dynamic na dfast moving marke t

o market for social networking service

 fuxntions
  richer social experience than prevoosu market
 Facebook offers much more fucntions than facebook : so distant
competitors
 It reviewed the merger app
 Many opertaors, including providrs of communication apps  easy
switcihing
 Future integration between facebook and whatsapp unlikely due to
technical barriers
o Online advertising services
 No horizontal anti cmeptitive effect t:: only facebbok operated in
market , whatsapp no adds
 Ruled out that post merger facebook would have a stronger
market posotions (use user data of whatsapp for targeted ads )
 Says there are other service eproviders for ads who could
compete (gooogel as competitor who can get more
dtaagahahahaha)
 If they did people would leae whatsapp
- mmission confirmed that merger control should focus only on the economic effects of
merger operations, privacy concerns being outside the scope of the EUMR
 o
Melia case art 101 :

3.   FACTS

(7)Meliá’s commercial relationships with tour operators for the distribution of

hotel accommodation at Meliá’s holiday resorts are based on written contracts.
Some of those contracts are based on Meliá’s standard terms and conditions
(‘Meliá’s Standard Terms’).
(8)One of the clauses of Meliá’s Standard Terms (‘the Clause’) stated as follows:
‘APPLICATION MARKET: contract valid only and exclusively for the markets
that are detailed in the observation 16. the hotel will be able to request to the
agency/tour operator to verify the market of origin of any reservation on which
it exist any reasonable doubt, in any case, if at the arrival of the clients to the
hotel, it is verified that the country of residence of them is different than
the one agreed as per contract, the hotel would be entitled to reject the
reservation’.
(9)In the individual contracts with tour operators, Observation 16 was either empty
or specified the country or countries for which the contract was valid.
(10)According to the information submitted by Meliá, 2 212 of Meliá’s contracts
with tour operators in force in 2014 containing the Clause specified at least one
EEA country in Observation 16. In 2015, that figure was 2 004 contracts. The
contracts containing the Clause and specifying at least one EEA country in
Observation 16 that were in force in 2014 and 2015 are together referred to as
the ‘Relevant Contracts’.

4.   LEGAL ASSESSMENT

(11)The Relevant Contracts constitute agreements within the meaning of Article

101(1) TFEU and Article 53(1) of the EEA Agreement.
(12)In the Relevant Contracts, Meliá and the contracting tour operators specified
the territories to which each contract applied and thereby differentiated
between European consumers on the basis of their country of residence.
(13)The content and the objective of the Clause of Meliá’s Standard Terms, in
conjunction with Observation 16 of the Relevant Contracts was to restrict the
ability of the tour operators to sell Meliá’s hotel accommodation to, and/or to
respond to unsolicited requests from, consumers residing outside the country
or countries specified in Observation 16.
(14)Accordingly, those agreements restricted the ability of the tour operators
to freely sell the hotel accommodation in all EEA countries and therefore
might have resulted in the partitioning of the internal market according to
national borders. This conduct constitutes, by its very nature, a restriction
of competition by object within the meaning of Article 101(1) of the
Treaty.
(15)The Decision also finds that Meliá’s conduct is not exempted under Regulation
(EU) No 330/2010, nor does it meet the conditions of Article 101(3) of the
Treaty.