Category Archives: Allgemein

First application of the Glawischnig-Piesczek CJEU decision

As reported, the CJEU clarified in the Glawischnig-Piesczek decision (C-18/18) the possible scope of injunctions against host providers such as Facebook. Following this decision courts may order the deletion not only of the specific infringing post but also of all information with equivalent meaning, even if it originates from other users.

In a new and unrelated case (4 Ob 36/20b), the Austrian Supreme Court (OGH) applied these principles for the first time and issued a remarkably broad injunction. The Austrian Broadcasting Corporation (ORF) acted as plaintiff against defendant Facebook. The dispute concerned the following picture of an ORF news anchor, to which an Austrian politician had added a text translating to: “There is a place where lies become news. This is the ORF”:

https://www.ris.bka.gv.at/~/Dokumente/Justiz/JJT_20200330_OGH0002_0040OB00036_20B0000_000/image002.jpg
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The renowned international magazine “Managing Intellectual Property” annually presents the EMEA Awards in London, which recognize the best European intellectual property firms.

At the ceromony in London on March 5, 2020, Gassauer-Fleissner Attorneys at Law received the award for the best Austrian law firm in the “Patent Contentious” field. The IP-Team was also nominated for top Austrian firm in the categories Trademark Contentious and Copyright & Design.

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Dr. Gassauer-Fleissner, Dr. Göbel und Mag. Wegrostek at the award ceremony.

Preliminary injunctions (PIs) allow rapid and effective action against infringements of intellectual property rights. To this end, the procedural rights of the parties are restricted and the evidence requirements are lowered. However, under the Austrian legal systems these advantages come with a trade-off: In subsequent main proceedings the PI is reviewed and if it turns out that the PI was wrongly granted, the rights holder must indemnify, irrespective of fault, any damage that the alleged infringer has suffered through the unjustified PI. This system, which can also be found in other European countries, is now called into question by the CJEU decision Bayer Pharma v. Richter Gedeon and Exeltis, Case No. C-688/17.

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Due to the borderless nature of the Internet, it is often a hard question in which country right holders may file an action against online IP infringements. Concerning online infringement of EU trade marks, the CJEUhas now created (some) clarity in AMS Neve v. Heritage – C-172/18. Trade mark holders may sue not only in the infringer’s home country but also in the country to which the infringing offers for sale and advertising are directed. This results from Art 125 (5) UMV (formerly Art 97 (5) CTMR).

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If courts declare a hate posting illegal, they can require social networks (here Facebook) to remove not only this posting but also all posts with the same meaning, even if a different user posted them. EU law is not opposed to this. The CJEU stated this in the Case Eva Glawischnig-Piesczek v Facebook (C-18/18). Contrary to what is often reported, the CJEU held that this obligation only applies once a national court has declared the content unlawful. It does not follow from the decision that social networks are required to pre-emptively remove content before a court order is issued.  

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In a new decision (case C673/17), the CJEU clarified an essential issue for website operators. The decision, states that a pre-ticked checkbox does not constitute effective consent to the legitimate use of cookies. This also applies to the use of cookies that do not process personal data. Moreover, it must be assumed that the frequently used banners, which simply can be clicked away or are left standing while the website is are already processing data at this point in time, do not meet the necessary requirements for an effective consent either. Data processing is only allowed following a clear and active behaviour on the part of a website user, which expresses his or her consent to the data processing. From a technical point of view, it will now also be necessary to ensure that no data is in fact collected in cases where consent is refused, which is often not the case in practice at present.

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Sampling, i.e. the use of individual sequences from existing pieces of music as part of a new work, is widespread. It is an essential element in hip hop and electronic music. In practice, however, very few producers seek a licence from the author or right holder of the original recording. Sampling is seen by many as its own culture, where creativity lies in the creation of new musical work consisting of a number of short, partly changed or alienated elements, so that obtaining all rights for each individual sample is often out of the question for financial or practical reasons.

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Editors Alexander Koller and Michael Stadler have put a lot of work and heart and soul into it: The commentary published in June 2019 by Linde Verlag for the first time offers a comprehensive commentary on Austrian patent and utility model law. 34 authors, all of them practitioners of patent law from the legal and patent attorney profession, the judiciary, the university sector, the public sector and industry, bring every single paragraph to life. GFR partner Manuel Wegrostek is honoured to have made a modest contribution on the chapters of exhaustion and the preservation of evidence.

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