Architecture has a special place within the law of copyright. The law does not restrict the development of architectural ideas and concepts; it does, however, prevent the copying of plans.
The test is whether the plan or building was a copy of the concept or style and therefore legitimate or a copy of the author's original manifestations of that concept or style and therefore an infringement. Another interesting aspect of architectural works is that they usually take the form of a professional commission.
The copyright owner can grant a licence either explicitly or implicitly to a third party to reproduce his work. Architects tend to be reluctant to assign their copyright, preferring to license it. If an architect is retained without a written agreement or on an agreement which does not expressly address copyright, a licence is implied. It would be difficult to give an agreement between an architect and his client commercial efficacy if the client was not entitled to use the architect's designs.
In the European Court of Justice Opel/Autec decision of 2007, the ECJ broadened its rule of reason exception to the exclusive rights granted by Article 5(1)(a) of the Trade marks Directive. The exception appears not to apply in Article 5(2) situation. Also, the decision is essential for qualifying certain trade mark uses falling under different exclusive rights.
The decision builds on earlier case law, holding that there is only infringement under Article 5(1)(a) when the use by a third party harms one of the functions of the trade mark, in particular the guarantee of origin function. However, it broadens this exception by requiring the public to see a commercial link, thus indirectly introducing something that looks like a ‘risk of confusion element’ under Article 5(1)(a) of the Directive.
The rule of reason exception appears not to apply in cases where the protection of Article 5(2) of the Directive is invoked.
The earlier ECJ BMW/Deenik decision only has relevance for cases with those exact facts and circumstances; in all other situations, there would be no use in relation to goods or services, meaning that these cases would fall under Article 5(5) of the Directive (‘other use’), which does not contain harmonized trade mark law. Potentially this is an unwanted consequence.
The ECJ added requirements for finding infringement under Article 5(1)(a) of the Directive. Various forms of trade mark use, such as use on the internet (in ‘Adwords’), referring use, and use in comparative advertising, may then fall outside the scope of Articles 5(1) and 5(2). In such cases, the trade mark is arguably not used in identifying the products of the advertising party, but those of the trade mark holder.
This article looks at current IPOs, convertible bond offerings, trends of the global market, etc. In the context of this capital market trend, important legal issues arise.
The cases discussed concern IP litigation, civil procedure law, securities law, securities exchange law, and corporate law.
The purpose of this article is to provide a quick overview of how IP law issues can impact upon securities law issues. The article has a high practical relevance for those advising all companies who want to raise funds around the world.