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2020 IP Law Year in Review: European Issues

Executive Summary From a German perspective, 2020 saw highly interesting developments that may well have an impact even beyond the borders of Germany. For example, the Federal Court of Justice (Bundesgerichtshof) in Sisvel v. Haier handed down a landmark decision on fair, reasonable and non-discriminatory (FRAND) law. This decision has already affected many FRAND cases tried before lower instance courts. Generally speaking, the FRAND law judgments issued in Germany in 2020 may have more upsides for standard-essential patent (SEP) holders than for implementers of standardised technologies. A successful constitutional complaint against the German act to ratify the Unified Patent Court (UPC) Agreement delivered a serious blow to the attempt to establish the UPC. However, German Federal Parliament and Federal Council managed, just before the end of 2020, to pass another UPC ratification act, thereby rectifying the mistake that led to the success of the...

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BREXIT: How Will It Impact Your European Trademark Rights?

The United Kingdom (UK) has officially withdrawn from the European Union (EU) on February 1, 2020, but will only become a third party after a transition period ending on December 31, 2020. With that date fast approaching, you are probably wondering what will change for your trademark rights on January 1, 2021? EU TRADEMARKS REGISTERED BEFORE JANUARY 1, 2021 Owners of EU trademarks (and EU parts of International Registrations) registered on or before December 31, 2020 will automatically receive a registered and enforceable UK trademark on January 1, 2021, without any re-examination or additional costs. The UK trademark will be for the same sign, the same goods, and the same filing, priority or seniority date as its corresponding EU trademark. Trademark owners will have the right to opt-out from this automatic cloning as of January 1, 2021 if they have no interest in the UK territory. As of January 1, 2021, EU registered trademarks and corresponding UK clones...

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Landmark Decision in German FRAND Case

On May 5, 2020, an oral hearing in Germany’s most recent landmark case on standard-essential patents (SEPs) and fair, reasonable and non-discriminatory (FRAND) licensing (Sisvel v. Haier, docket no. KZR 36/17) took place before the German Federal Court of Justice (FCJ). Key takeaways from the oral hearing According to the provisional view of the FCJ, as expressed during the oral hearing, a SEP holder is obliged to provide the information that an implementer needs for making a FRAND offer or for assessing FRAND compliance of an offer that the SEP holder made. This includes information on existing licenses and, if applicable, on why the SEP holder feels it may treat the implementer differently from certain existing licensees. An implementer must not delay negotiations and must constructively work together with the SEP holder in FRAND negotiations. In particular, it is important for an implementer to clearly declare that it is willing to take a FRAND license on...

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