Amsterdam has a system of canals. But before boats and pleasure craft can take to Amsterdam’s waters, they need a licence from the local authority. Unfortunately, the authority handed out its boat licences a while back. In this case, a Dutch company now wishes to rent out its boat for either office parties or company ‘days-out’, and unsurprisingly its application was turned down. The aggrieved company is challenging the legality of the licensing system. It alleges that since the authority’s licences are for an unlimited duration, the system is disproportionate and shows that the authority acts arbitrarily – something contrary to EU Treaty law and the EU ‘services’ Directive 2006/123/EC. The authority denies that it is doing anything wrong: issuing a limited number of licences is a proportionate response designed to limit the congestion on Amsterdam’s canals; and even if it is wrong on that point, then this is a ‘purely internal situation’ to which EU law does not apply. More
Case C-341/14, Harmsen – red light services and the language of EU law
Amsterdam has a red light district. Aspects of the neighbourhood are regulated by the local authority. So can the local authority refuse to licence a Dutch company that rents apartments to Bulgarian and Hungarian sex workers, on the basis that the people running the company do not speak the languages of those self-employed workers? Or is the local authority’s policy, which effectively restricts the renting of apartments to those self-employed workers who can speak either Dutch or English, incompatible with the EU’s ‘services’ Directive 2006/123/EC? More
Case C-325/14, SBS Belgium – broadcasting via third parties
Some broadcasters no longer broadcast directly to the public. Instead, a broadcaster will supply their channels and programming output to ‘distributors’ such as the cable, telephone, and satellite TV companies. Subscribers to the services provided by these distributors can then watch the broadcaster’s output. This does however generate a question of copyright law. Namely, for the purposes of the EU’s InfoSoc Directive 2001/29/EC, who is making a ‘communication to the public’? Is it the broadcaster? Or is it the distributor? Or could it be both? More
Case C-215/14, Nestlé – getting into the groove with three-dimensional trade marks
People in England have been able to buy a four-fingered, chocolate-coated, wafer-bar called a ‘Kit Kat’ since the 1930s. The fingers of chocolate are separated by grooves. In 2010, Kit Kat’s new commercial owners tried to trade mark a three dimensional shape with grooves in it. But the grooved shape applied for was not inherently distinctive so EU trade mark law would not allow it to be registered. Kit Kat’s only hope of securing trade mark protection rested on Article 3(3) of the EU’s trade mark Directive 2008/95/EC, which allows a mark to be registered where ‘a mark has acquired a distinctive character through use prior to the registration of the mark’. English law suggested that no protection should be given in this particular case. But was that right under EU trade mark law? Furthermore, was the mark still unable to be registered because almost all of the essential features of the chocolate bar were really just designed to ensure that there were chocolate ‘fingers’? If so, then this would again mean that there was no protection because the shape was necessary to obtain a technical result. More
Case C-147/14, Loutfi – Arabic words in Arabic and Latin scripts under EU trade mark law
Arabic words transcribed in Arabic or Latin scripts can be used in Community Trade Marks. However, when assessing the likelihood of confusion between one Community trade mark in which an Arabic word is dominant and an allegedly infringing sign where a visually similar Arabic word is used, should account be taken of the fact that the sign sounds quite different, and has a very different meaning? Or should the confusion assessment be conducted without paying any attention to the words in Arabic – after all, Arabic is not an official language either of the EU or in the Member States. But if attention should focus only on the Latin script at the expense of the Arabic script, then would that assessment not infringe the EU Charter rights that protect against non-discrimination and ensure diversity? More