Copyright

2024 has seen the CJEU (The Court of Justice of the European Union) continue its activist role in harmonising copyright law in the EU. In particular, in Kwantum v Vitra, it ruled that EU law does not allow member states to apply the Berne Convention’s rule of material reciprocity to non-EU works – meaning that international designs attract copyright protection in the EU on the same (generous) footing as those originating in the EU. It also returned to the perennial question of the scope of copyright infringement by communication to the public. 

In Citadines, it confirmed that retransmitting signals to TVs in hotel rooms and common areas is communication to the public (leaving the question of the relevance of the hotel’s cable retransmission licence to the national courts) and in GEMA it ruled that putting TVs in rented apartments could be a communication to the public, but only where that act made TV programmes available to a “new public”, e.g. international tourists.

In a dispute between Valve Corporation and consumer rights organisation UFC Que Choisir, the French Supreme Court has ruled that video game publishers can prohibit the resale by consumers of digital copies of their games, as their copyrights in those video games are not exhausted by the first sale.

The German Federal Court of Justice has also weighed in on digital copyright issues, finding that a copyright holder that sells digital wallpaper has, unless agreed otherwise, already consented to that wallpaper appearing in the background of videos or images that are then made publicly accessible, e.g. on social media (FCJ, I ZR 140/23 – Coffee). It also ruled that drone footage does not benefit from the German copyright exception known as “freedom of panorama”, as that exception extends only to works visible from a public street (FCJ, I ZR 67/23 – Über alle Berge).

In the UK, a case about copyright protection for a rowing machine (WaterRower v Liking) highlighted the conflict between UK and EU approaches to copyright-protected subject matter. 

Trademarks

The UK Supreme Court has given two important decisions on trademark matters in 2024. In Lifestyle Equities v Amazon, it opined on the circumstances in which use of trademarks online will constitute “use” of those marks in the UK, emphasising that the key question is whether the average UK consumer would consider the website to be directed at them. In Skykick v Sky, it also ruled on the scope of bad faith in trademark applications and when inferences of bad faith may be drawn.

The German Federal Court of Justice has referred a case relating to 3D models of VW’s iconic “Bulli” minivan back to the lower courts due to insufficient findings on whether the trademark was actually “used” in this context, given the heightened use requirements for a 3D trademark.

Patents

In the UK, the most notable patent decisions of 2024 relate to the fair, reasonable and non-discriminatory (FRAND) licensing of standard essential patents (SEPs). 2024 saw the UK’s first appeal decision addressing global FRAND determinations in Interdigital v Lenovo. FRAND trials have also, for the first time, been scheduled to be heard this year ahead of those assessing validity and infringement issues. 

Finally, after two unsuccessful claims by implementers for interim licences, in Panasonic v Xiaomi, the Court of Appeal found that Panasonic was an unwilling licensor for pursuing claims for foreign injunctions despite having undertaken to enter into a global licence on terms determined by the English courts to be FRAND. 

The Court of Appeal also declared by a majority that a willing licensor in Panasonic’s position would enter an interim FRAND licence with Xiaomi, pending the final FRAND determination by the High Court. However, it does not appear that interim licences are the new standard in the UK. A request for an interim licence has already been refused in a subsequent UK FRAND case on the basis that it served no useful purpose.  

The UK Court of Appeal also ruled (in Emotional Perception AI v Comptroller General) that AI inventions comprising artificial neural networks (ANNs) are within the exclusion from patentability for “computer programs as such” and therefore not patentable unless they escape the exclusion by making a technical contribution. 

The German Federal Court of Justice provided a landmark decision on damages for patent infringement, allowing revenues made abroad but resulting from a domestic infringement to be included in the damages calculation. This will likely open the door to a broader application of such “springboard damages”, also with respect to damages suffered after the end of the patent term.

The UPC opened its doors in June 2023, so 2024 was its first full year of operation. This year has seen the UPC’s Court of Appeal handing down judgments on topics including public access to documents, opt outs and preliminary injunctions. It has also seen the first decisions on the merits in both infringement and revocation actions before the first instance divisions, providing further guidance on key issues such as claim interpretation, the test for obviousness and the doctrine of equivalents. 

The UPC has also recently issued its first two decisions involving SEPs and FRAND. In November, the Mannheim Local Division granted Panasonic an injunction enforceable in five European countries, dismissing OPPO’s FRAND defence and counterclaim. This decision was swiftly followed by a win for Huawei in respect of its WiFi 6 SEPs, resulting in a seven-country injunction against Netgear granted by the Munich Local Division. With around 30 SEPs cases pending, this area will see further development in 2025, including in the UPC Court of Appeal.

Cases to watch in 2025

Cases at the intersection of AI and copyright will remain in the spotlight in 2025. In Germany, a dispute between a photographer and AI image dataset creator LAION will examine copyright exceptions under the German Copyright Act in the context of training AI. In the UK, Getty’s complaint against Stability AI will explore a range of applications of IP law to novel questions relating to the training and use of AI models in the UK.

In an appeal in the Iconix v Dream Pairs case relating to the Umbro logo, the UK Supreme Court is set to consider the relevance of post-sale confusion in UK trademark infringement cases. The UK Supreme Court will also hear an appeal in the Emotional Perception AI case relating to the patentability of ANNs. 

Pauline Debré and Bolko Ehlgen are partners at Linklaters in Paris and Frankfurt respectively. Kathy Berry is a counsel in Linklaters’ London office and Laetitia Nicolazzi is a managing associate in Paris.