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Commission welcomes the political agreement on Horizon Europe

Horizon Europe 2021-27

Commission welcomes the political agreement between the European Parliament and the Council on Horizon Europe, the future EU research and innovation programme

Despite the uncertain times we have been living through over the past year, it seems that the European Union’s commitment to promoting industrial leadership in Europe remains intact.

As we already commented in the article we posted on this subject, coinciding with the end of the Horizon 2020 programme, the European Commission is working on the launch of the Horizon Europe programme, with the same aim as Horizon 2020 when it was launched, namely, to support innovation activities in Europe and drive scientific excellence. It has a budget of 95.5 billion euros for the period 2021-2027, making it the largest ever transnational programme in support of research and innovation.

banderas europeas, edificio, comisión europea

 

Following months of negotiations, on 11 December 2020 the institutions of the European Union reached a politicial agreement on the Horizon Europe programme. While the agreement is pending formal approval by the European Parliament and the Council, the Commission has been preparing its implementation in order to start the programme as soon as possible after publication of the provisional agreement in March and April 2019.

According to the information included in the provisional agreement signed in March, Horizon Europe is based on three main pillars: promoting scientific excellence, supporting projects aimed at developing technological solutions to challenges in critical areas such as health, climate change or mobility, and fostering innovation activities throughout the European Union. With the agreement about to be formally approved, the measures established by Horizon Europe to drive progress have now been defined:

  • Creation of the European Innovation Council (EIC), a one-stop-shop for developing the most promising ideas and providing support to the most innovative SMEs, which is currently in a pilot phase and will complement the European Institute of Innovation and Technology (EIT).
  • Implementation of the EU missions, aimed at tackling issues that affect our daily lives, from the fight against cancer to adaptation to climate change and care for the environment.
  • A streamlined approach to European partnerships, as well as encouraging wide participation of partners from the public and private sectors.
  • Strengthening international cooperation by granting the opportunity to cooperate with countries outside the EU (third countries) with good capacity in science, technology and innovation.
  • Promoting open science by ensuring open access to publications and research data.
  • Encouraging participation and reducing the innovation gap in Europe, approving a wide spectrum of measures to support countries with lower innovation performance, build up centres of excellence and facilitate collaborative links.
  • Increasing the impact of R&D&I by creating synergies with other European Union programmes and policies such as InvestEU, Erasmus+, EU Cohesion Policy, Digital Europe, European Structural and Investment Funds, among others.
  • Increasing legal certainty and reducing administrative burden for beneficiaries and programme administrators.

According to the press dossier published by the European Commission, the implementation of these measures is expected to create 300,000 jobs by 2040, of which 40% will be highly skilled jobs, and potentially generate up to 11 euros of GDP gains over 25 years for each euro invested in R&I. Moreover, it has been calculated that more than 35% of Horizon Europe spending will contribute to climate objectives.

Notwithstanding the formal approval of the agreement and the measures that are ultimately adopted, there can be no doubt that this new programme, even more ambitious than its predecessor, will help to establish an innovation ecosystem in Europe, and Spanish companies investing in R&D&I should seek to take advantage of the benefits and opportunities.

In this regard, it is essential to approach the calls for proposals that are published in the framework of the Horizon Europe programme with expert assistance and planning, providing greater guarantees for companies to be able to take advantage of this kind of opportunity. As part of our commitment to support Spanish companies and institutions in their innovation activities, we shall monitor and keep up to date with the news published on Horizon Europe and the first calls for proposals launched under the programme.

Other information of interest may be found below:

 

Authors: Alba Mª López and Marina Martínez

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European Commission prepares Horizon Europe: the future framework programme for research, development and innovation in the EU

banderas europeas, edificio, comisión europea

Horizon 2020 (H2020) is the programme for funding research and innovation projects in the European Union for the period 2014-2020.

Coinciding with the end of the H2020 programme and with the same aim (to promote industrial leadership in Europe and drive scientific excellence), the European Commission is now preparing its follow-up programme, Horizon Europe. This new programme will cover the period 2021-2027 and it promises to be the largest ever programme of funding for research, development and innovation

banderas europeas, edificio, comisión europea

 

What is Horizon Europe?

Horizon Europe is a funding programme aimed at supporting research, development and innovation projects which advance a series of common objectives for the entire European Union. These objectives are based on the three pillars of the Horizon Europe programme, which are the following:

    • Excellent Science. Firstly, the programme aims to promote “open science”, offering support to researchers through grants, and funding projects defined and driven by researchers through the European Research Council and the Marie Sklodowska-Curie Actions (MSCA).
 
    • Global challenges and European industrial competitiveness. Secondly, the programme aims to support, through the Joint Research Centre (JRC), projects that develop technological solutions to challenges in critical areas such as health, climate change, mobility, food and natural resources, energy, civil security, digital, industry and space, etc. This means that projects will no longer be assessed solely in terms of excellence. The development projects put forward in the calls for proposals must have a clear social impact.
 
  • Innovative Europe. Finally, it aims to foster and support innovation activities that bring together business, research and education through the European Innovation Council (EIC) and the European Institute of Innovation and Technology (EIT) . These innovation activities will be exploited in connection with so-called “missions”, which are general global challenges (for example, cancer, soil health and food, climate-neutral and smart cities, healthy oceans, seas, coastal and inland waters, and adaptation to climate change). Funding will thus be provided for projects which could have an impact on some of these areas.

Click here to access the full document on the Horizon Europe Programme 2021-2027.

 

Authors: Alba Mª López and Marina Martínez

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Proposal for EU Digital Services Act published

Imagen de compras online

On 15 December 2020, the European Commission finally published the long-awaited proposal for a Digital Services Act, as well as the proposal for a regulation on digital markets (link to related article).

These new regulations:

  1. provide stronger protection for consumers and their fundamental rights online;
  2. establish high standards of transparency and a clear accountability framework for online platforms; and
  3. will foster innovation, growth and competitiveness in the single market.
Imagen de compras online  

The regulation on digital services, according to the press release published, will introduce a series of new, harmonised EU-wide obligations for digital services, carefully graduated on the basis of the size and impact of those services, such as:

  • rules for removal of illegal goods, services or content online;
  • safeguards for users whose content has been wrongfully removed by platforms;
  • new obligations for platforms to take risk-based action to prevent abuse of their systems;
  • wide-ranging transparency measures, including measures relating to online advertising and to the algorithms used to recommend content to users;
  • new powers to scrutinise how platforms work, including facilitating researchers’ access to key platform data;
  • new rules on traceability of business users in online marketplaces, to help track down sellers of illegal goods or services;
  • an innovative cooperation process among public authorities to ensure effective enforcement across the single market.

Platforms that reach more than 10% of the EU’s population (45 million users) are considered systemic in nature and are subject not only to specific obligations to control their own risks, but also to a new oversight structure. This new accountability framework will be comprised of a board of national digital services coordinators, with special powers for the Commission in supervising very large platforms, including the power to sanction them directly.

The European Parliament and the Member States will now discuss these proposals from the Commission in the ordinary legislative procedure. Once these rules are adopted, they will be directly applicable across the EU. We will have to wait to see what amendments are made during the parliamentary procedure. In any case, this effort to regulate the digital world is certainly the right way forward.

 

Author: Juan José Caselles

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The Court of Justice rules for the first time on the prohibition concerning registration of a trademark filed by an agent

Edificio del palacio de justicia

The Court of Justice issued a judgment on 11 November 2020 (C-809/18 P; MINERAL MAGIC) in which it had the opportunity, for the first time, to establish the requirements that must be fulfilled for application of Article 8(3) of the Regulation on the European Union Trademark (EUTMR).

This precept, which has its origin in Article 6septies of the Paris Convention, concerns the case where an agent (person linked commercially with the proprietor of a foreign trademark) applies in his own name for the trademark of said proprietor without the proprietor’s consent. This is known informally as the case of the “unfaithful agent”.

Edificio del palacio de justicia  

The background to the dispute leading to the judgment in question can be summarised as follows. The UK company JOHN MILLS filed an application for the European Union trademark MINERAL MAGIC to cover a range of goods in class 3. Prior to the application, there was a distribution agreement between JOHN MILLS and the US company JEROME ALEXANDER CONSULTING in relation to goods sold under the designation MAGIC MINERALS BY JEROME ALEXANDER. Having become aware of the filing of the mark MINERAL MAGIC, the US company filed an opposition invoking the application of Article 8(3) EUTMR. They cited, among others, the existence of the registered US trademark MAGIC MINERALS BY JEROME ALEXANDER also covering goods in class 3.

The main issue already addressed in the proceedings before the EUIPO was whether Art. 8(3) EUTMR was applicable when, as in this case, the word designations of the EU mark and the US mark were not completely identical, and the goods covered by the respective marks were not identical either (at least not completely).

Since the dual conditions of identical marks and identical goods were not present, the EUIPO’s Opposition Division rejected the US company’s arguments. However, the subsequent appeal was accepted by the EUIPO’s First Board of Appeal and the mark MINERAL MAGIC was thus refused. The Board of Appeal adopted a flexible interpretation of the provisions of Article 8(3) EUTMR, finding that they could also be applied when the marks in dispute are similar either in respect of the marks or the goods covered.

JOHN MILLS lodged an appeal, which was accepted by the General Court in a judgment dated 15 October 2018 (T-7/17). The General Court essentially adopted a literal interpretation of Article 8(3) EUTMR, which refers to “the trademark”, meaning that, in the opinion of the General Court, the foreign mark and the mark applied for must be the same and, therefore, identical. Moreover, in support of its view, the General Court referred to the preparatory work carried out for the drafting of Regulation 40/94 on the Community trademark. This included a document which expressly indicated that the suggestion of a delegation that the provision concerned should also apply in cases of ‘similar’ trademarks for ‘similar’ goods, had not been adopted. For the General Court, since the wording of Article 8(3) is so clear, there was no need to use other interpretative sources, such as, for example, Article 6septies of the Paris Convention. Consequently, it held that since there was only a mere similarity between the marks in conflict, the conditions for application of Article 8(3) EUTMR were not present.

The Court of Justice, on the other hand, considered that for the application of Article 8(3) EUTMR, it is essential to take into account Article 6septies of the Paris Convention, since the European Union is a member of the World Trade Organization and, as such, is obliged to adhere to the TRIPS Agreement which, in turn, provides that members shall comply with Articles 1 to 12 of the Paris Convention.

While the Court of Justice recognises that in the French-language version (which is the authentic version) of Article 6septies of the Paris Convention the expression ‘cette marque’ is used in reference to the earlier mark, it nevertheless studies the background to the provision. In this regard, the Court of Justice states that in the Acts of the Conference of Lisbon of 1958 (the Conference where the provision was introduced) it is indicated that a trademark applied for by the agent or representative of the proprietor of the earlier mark may also be covered by that provision where the mark applied for is similar to that earlier mark.

Thus, the Court of Justice does not assume that Article 8(3) EUTMR (and its originating provision, Article 6septies of the Paris Convention) only applies where the dual conditions of identical marks and identical goods/services are present and it acknowledges that, in principle, it can also be applied in cases of “similarity”. And in this regard (and for me this argument is very convincing) the Court of Justice clearly states that “if Art. 8(3) EUTMR were only applied in cases where the marks at issue are identical (also including where the goods and/or services are identical), such an interpretation would have the effect of calling into question the general scheme of the European Union Trademark Regulation in that it would result in the proprietor of the foreign mark being deprived of the possibility of opposing, on the basis of Article 8(3), the registration of a similar mark by his agent or representative, even though the agent or representative, following such registration, would be entitled to file opposition, pursuant, in particular, to Article 8(1)(b), against the application for subsequent registration of the initial mark by that proprietor on the ground of its similarity to the mark registered by the agent or representative of that proprietor”.

On the basis of these arguments, the Court of Justice upheld the appeal and even addressed the substance of the matter, finding that in this case the requirements for application of Article 8(3) EUTMR were fulfilled and, therefore, the marks could not be permitted to coexist.

We can therefore conclude that this judgment is of great importance, given that it confirms the necessary conditions for the proprietor of a foreign trademark to be able to prevent the registration of a later mark applied for by his agent or representative. In summary, we can say that the conditions, which are cumulative, are the following.

  1. The first condition is that, specifically in countries where trademarks are acquired through registration, the person intending to exercise his right must be the proprietor of a trademark in a country that is party to the Paris Convention or a member of the World Trade Organization.
  2.  
  3. The second condition is that a commercial relationship must have existed between the applicant and the proprietor of the earlier mark prior to the filing of the contested mark. In this regard, there is agreement that the terms “agent” or “representative” are to be interpreted broadly, including, for example, distributors, as in the case concerned in this judgment.
  4.  
  5. As for the final requirement, on which this judgment has provided clarification, it is not essential for the dual conditions of identical marks and identical goods/services to be present. The provision may also be applied in cases where there is similarity between the marks and similarity in the goods or services claimed by the respective marks.

If these requirements are fulfilled, Article 8(3) EUTMR and Article 6septies of the Paris Convention shall apply,unless, as specified in those legal provisions, the agent is able to justify his actions or has authorisation (which I understand must be express authorisation) from the proprietor of the foreign mark.

 

Author: Jesús Gómez Montero; Former Partner of Elzaburu and Member of the Advisory Board of the Alberto Elzaburu Foundation

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Forthcoming publication of the EU’s Digital Services Act

Inminente publicación de la "DIGITAL SERVICES ACT" de la UE

Online platforms (such as search engines, social media and e-commerce platforms) play an increasingly important role in our everyday lives. However, the current EU rules on digital services have to a large extent remained unaltered since the adoption of the Directive on electronic commerce in the year 2000, with great discrepancies in the way this Directive has been implemented across the EU.

Forthcoming publication of the EU’s Digital Services Act  

The Commission announced the revision of the internal market rules for digital services in its 2019 communication “Shaping Europe’s digital future”. Two public consultations were carried out, which had the following structure and ended on 8 September 2020:

  1. Assessment of the Directive on electronic commerce and clarification of the liability regime for digital services; and
  2. Possible introduction of an ex ante regulatory instrument for controlling the practices of large online platforms with significant network effects acting as gate-keepers.

The European added value assessment of the Digital Services Act was presented in October 2020, with the approval of the European Parliament resolution of 20 October 2020 on the Digital Services Act and fundamental rights issues posed.

The forthcoming next step will be the publication of the Digital Services Act, on 9 December 2020. Special attention must be paid to its final text, in particular with regard to the possible creation of national authorities competent to deal with illegal content. What does seem clear is that freedom of expression may not be asserted to sell counterfeit goods online.

 

Author: Juan José Caselles

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