Executive Summary
From a German perspective, 2020 saw highly interesting developments that may well have an impact even beyond the borders of Germany. For example, the Federal Court of Justice (Bundesgerichtshof) in Sisvel v. Haier handed down a landmark decision on fair, reasonable and non-discriminatory (FRAND) law. This decision has already affected many FRAND cases tried before lower instance courts. Generally speaking, the FRAND law judgments issued in Germany in 2020 may have more upsides for standard-essential patent (SEP) holders than for implementers of standardised technologies.
A successful constitutional complaint against the German act to ratify the Unified Patent Court (UPC) Agreement delivered a serious blow to the attempt to establish the UPC. However, German Federal Parliament and Federal Council managed, just before the end of 2020, to pass another UPC ratification act, thereby rectifying the mistake that led to the success of the constitutional complaint. The fate of the UPC project remains somewhat unclear, however, in light of newly filed constitutional complaints.
Finally, 2020 saw the United Kingdom officially withdraw from the European Union on 1 February and become a third-party country after a transitional period that ended on 31 December. This event has multiple consequences for EU intellectual property rights, particularly EU trademarks, depending on whether they were filed or registered as of 1 January 2021.
European Issues
- Germany and the UPC
- German Federal Court of Justice on FRAND Law: Sisvel v. Haier
- How Does Brexit Affect European Trademark Rights?
2021 Outlook
Even though there were major developments in Germany regarding FRAND law and the UPC in 2020, these topics are far from being finally settled.
After the Federal Court of Justice’s Sisvel v. Haier decision led to relatively SEP-holder-friendly decisions by the Munich I District Court and the Mannheim District Court, the Düsseldorf District Court referred several FRAND-related questions to the CJEU in November 2020. The expected CJEU decision has the potential to shape the future of FRAND law not just in Germany, but in the whole European Union.
It will be interesting to follow the further development of the UPC project in the light of new constitutional complaints filed against Germany’s new act to ratify the UPC Agreement. These complaints may put another hold on the UPC undertaking. In any event, Germany is not expected to deposit its instrument of ratification very soon because the UPC still needs time to set up its infrastructure, including the appointment of judges.
The question of whether competitors and consumer associations can issue warning letters for violations of the General Data Protection Regulation (GDPR) continued to occupy the courts in 2020, and likely will do so in 2021 as well. According to a decision of the Stuttgart Court of Appeal dated 27 February 2020 (2 U 257/19), competition associations can issue warning letters for violations of the GDPR. The Berlin Court of Appeal previously affirmed this on 20 December 2019 (5 U 9/18) for consumer associations in the case of default settings of an account in a social network that violate the GDPR. The German Federal Court of Justice referred a similar question to the CJEU for a preliminary ruling on 28 May 2020 (I ZR 186/17). A decision is expected towards the end of 2021 at the earliest.
An important piece of legislation that will be discussed and perhaps even adopted by the European Parliament in 2021 is the Digital Services Act Package, composed of two draft regulations proposed by the European Commission and published on 15 December 2020: the Digital Services Act and the Digital Markets Act. This new “package” intends to define a new framework for the EU digital market by, inter alia, updating the 20-year old e-commerce directive No. 2000/31/EC and increasing the responsibility of certain actors in the digital sector, particularly in the way they operate their business and provide goods, services and content to internet users. For instance, the initial draft of the Digital Services Act provides for a mechanism for users to flag illegal content and for platforms to cooperate with “trusted flaggers”, and for the possibility for users to challenge platforms’ content moderation decisions.
