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products. 35 The essential characteristics are the ‘most important elements of the sign’. 36 Precisely which elements qualify has to be assessed on a case-by-case basis, which gives

right was confined to cases in which a third party’s use of the sign affects or is liable to affect the functions of the trade mark—in particular, its essential function of guaranteeing

provision is not intended to prevent any use of a mark with a reputation; it is essential in any case that the opponent establishes that use of a similar mark would have one of these

action of the user must be ‘indispensable’ or ‘essential’ to enable the public to access the work (or subject matter). 184 In many cases it has been suggested that this means the public

distinct commercial origin for products was an essential prerequisite for withstanding a revocation challenge. It follows from the case law that use of marks to decorate products—or

name is an essential component, rather than a different class of consumable commercial goods that people purchased because they came from a specific trader. 90 In those cases in which

Deenik , Case C-63/97 [1999] ECR I–905, [61]; Céline Sàrl v. Céline SA , Case C-17/06 [2007] ECR I–7041, [32]; Gerolsteiner Brunnen GmbH & Co. v. Putsch GmbH , Case C-100/02 [2004]

that the inclusion of the emblem was ‘essential to the object for which the image … was created’ rather than incidental. 259 In an earlier case, the High Court held that, by featuring

France , Cases 236/08–238/08 [2010] ECR I–2417, [118] (in a trade mark case, drafting the message or selecting the keyword). 79 L’Oréal SA v. eBay International AG , Case C-324/09

this is because the cases were interim, 89 aspects of the reasoning are unconvincing, 90 and neither really turned on a demonstration of goodwill. 91 Other cases exhibit a more hard-line

Sola , Case ICD 396 (20 Sept 2005); Burberry v. Duran-Corretjer & Partners , Case ICD 1568 (8 February 2006). 141 CDR, Art. 25(1)(d). 142 Grupo Promer v. OHIM-PepsiCo , Case T 9/07

122 Metall auf Metall , Case I ZR 182/11 (13 December 2012), I ZR 112/06 (20 November 2008) (BGH); TV-Toyal , Case I ZR 52/05 (20 December 2007). These cases are discussed in F. Niemann

use that the essential function of the right is achieved). 105 The case law of the Court of Justice has elaborated this general principle in a range of subsequent cases. Rather than

There is no requirement of recording in the case of artistic works, 6 sound recordings, films, and published editions. In the case of sound recording and films, ‘recording’ is implicit

eneral of Patents , Case C-130/1, EU:C:2012:489. 114 Generics (UK) v. Synaptech , Case C-427/09 [2012] RPC 70 (ECJ), [33]; Synthon BV v. Merz Pharma , Case C-195/09 [2012] RPC

expressly recognizing a new tort of misuse of private information. 3 Yet it remains the case that many cases of misuse will also give rise to a confidence claim and, furthermore, that many

UK v. Commission , Case C-30/90 [1992] ECR I–829, [18]; Phil Collins v. Imirat , Cases C-92 and 326/92 [1993] ECR I–5144, [17]–[28]; Spain v. Council , Case C-350/92 [1995] ECR

prohibition on removing essential features does not prevent an amendment that introduces an essential feature that was previously described as non-essential. 154 Often, a patentee

no arguable case because the evidence is so insubstantial that it is clear that the case will fail. 19 In many situations, particularly in passing off and trade mark cases, the court

behaviour so as to be more willing to make their essential drugs available. 144 5 Compensation for use In the vast bulk of cases, the amount that is paid for the use of a patent