All issues > Volume 17 > Issue 2 > Case Commentary

The General Court of the EU confirmed the decision of the EUIPO Second Board of Appeal in relation to the EU figurative trade mark registered by adidas AG, according to which this mark, consisting of “three parallel equidistant stripes”, is devoid of distinctive character. The General Court confirmed that adidas AG had failed to demonstrate use of this mark throughout the EU or that the mark, which is inherently devoid of distinctive character, had, by virtue of that use, come to identify the goods for which it was registered and thus had acquired distinctiveness. The General Court, in reaching this conclusion, relied on its assessment that most of the evidence provided by adidas AG was irrelevant for the purposes of establishing that the mark had acquired distinctive character through use as it was not directly linked to the use of the mark in its registered form. In addition, the General Court recognized that there was nothing in the application of adidas AG to suggest that the registered trade mark could be interpreted as a “pattern mark”. Finally, in relation to the “law of permissible variations”, the General Court stated that because the figurative mark at issue is so simple, even a slight change can alter its distinctiveness.

The majority of reactions to the Commission’s decision to impose a fine on Google because of its anticompetitive practices regarding the mobile operating system Android were mainly focused on the record-breaking size of the penalty on the company and the political message that some analysists see in the context of the tense EU – USA economic relations. However, the importance of the proceeding against Google’s commercial conduct reaches far beyond. The arguments of the Commission have the potential to show to what degree the settled understanding and practice on the abuse of dominant position can be applied in the digital technology markets. From a broader perspective the approach of the authority could also shape the role of the antitrust policy and rules for the innovation process and can potentially influence the way technology companies do business in Europe. Having something to learn from its experience with other proceedings against USA big tech companies, the EU watchdog has to seize the opportunity to prove that it is fit to provide robust application of antitrust rules in the digital 21st century.

1       The case In the case of Bărbulescu v Romania[1] the European Court of Human Rights held that an employer’s monitoring of their employee’s instant messenger account and the disclosure of these communications (to the Applicant’s colleagues) containing highly private,

1. Introduction Personal data processing is at the heart of the information economy. Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data[1] (hereafter “the Directive”) provides

1. Facts Directive 95/46/EC (referred to as the Data Protection Directive)[1] imposes restrictions on transfers of personal data to a third country (i.e. non-EU/EEA country), which are allowed only if that country has ensured an “adequate” level of protection. However,