Judgment – 09/07/2026 – Anne Frank Fonds, Case C‑788/24

– The case concerned a request for a preliminary ruling regarding the interpretation of the concept of “communication to the public” under Article 3(1) of Directive 2001/29, as well as the assessment of the effectiveness of geo-blocking as a technological measure in circumstances where a work is in the public domain in certain Member States but remains protected by copyright in another Member State. The referring court also sought clarification regarding the relevance of the possibility of circumventing geo-blocking through the use of a virtual private network (VPN) or a similar service.

– The dispute arose between Anne Frank Fonds, on the one hand, and Anne Frank Stichting, Koninklijke Nederlandse Akademie van Wetenschappen and Vereniging voor Onderzoek en Ontsluiting van Historische Teksten, on the other.

– Anne Frank Fonds is the holder of the copyright in the works of Anne Frank. As follows from a final judgment of the rechtbank Amsterdam of 23 December 2015, part of those works remains protected in the Netherlands until 2037 under transitional provisions of Dutch copyright law. In other Member States, including Belgium, those works are already in the public domain.

– At the end of September 2021, a scholarly edition of Anne Frank’s manuscripts was published online free of charge in Dutch on the website www.annefrankmanuscripten.org. The domain name is owned by the Association and the website is registered in Belgium.

– Access to the website was restricted by a geo-blocking system designed to prevent access from Member States in which the manuscripts were still protected by copyright. Users attempting to access the website from the Netherlands were presented with a notice informing them that the website was unavailable in their country due to copyright considerations.

– Users accessing the website from Member States in which the works had entered the public domain were shown a notice stating that the scholarly edition could only be accessed from specified public-domain countries. Those users were required to declare that they were accessing the website from one of those countries and were informed that a false declaration would amount to circumventing protection measures and could result in copyright infringement liability.

– In November 2021, Anne Frank Fonds sent a letter of formal notice to the Foundation, the Academy and the Association, requiring them, inter alia, to cease making the Anne Frank manuscripts available on the website in breach of its copyright and, in particular, its exclusive right to make those works public in the Netherlands.

– After its claims had been dismissed both at first instance and on appeal in interim relief proceedings, Anne Frank Fonds brought an appeal in cassation before the Hoge Raad der Nederlanden. The lower courts had held that the Foundation, the Academy and the Association had made reasonable efforts to prevent or discourage access to the website from the Netherlands and that there had therefore been no communication to the public in the Netherlands.

– The referring court observed that the central issue was whether the circle of recipients of a communication to the public should be determined having regard to the intention of the person making that communication, as reflected by the technological measures implemented to restrict or control access to the content. The referring court further noted that, if the mere possibility of circumventing geo-blocking were sufficient to establish a communication to the public in a Member State, it would become practically impossible to publish a work online whenever that work remained protected by copyright in at least one Member State.

– The Hoge Raad referred questions to the Court concerning the criteria for determining whether an online publication is directed at the public of a particular Member State, the significance of the possibility of circumventing geo-blocking by means of a VPN, and the attribution of responsibility for any resulting communication to the public.

– The Court recalled that the concept of “communication to the public” must be interpreted broadly in light of the objective of Directive 2001/29, namely to ensure a high level of copyright protection. At the same time, a fair balance must be maintained between the protection of intellectual property rights and the protection of freedom of expression, freedom of information and the public interest.

– The Court stated that, where a work remains protected by copyright in only some Member States, a person who publishes that work online must ensure that effective technological measures are put in place so as to make the work accessible only to internet users in Member States where the work is in the public domain. Failing that, the work must be regarded as having been made available to all internet users, including those located in Member States where copyright protection still subsists.

– The Court held that a geo-blocking system based on the geographical location of users determined through their IP address constitutes a “technological measure” within the meaning of Article 6(3) of Directive 2001/29.

– The Court further explained that the effectiveness of a technological measure does not require that it be impossible to circumvent. Effectiveness must instead be assessed in the light of the principle of proportionality, technological developments, the suitability of the measure for achieving its objective, the availability of alternative measures, and the need to maintain a fair balance between copyright protection and other fundamental rights and interests protected under EU law.

– The Court emphasised that the possibility for internet users to bypass geo-blocking through the use of a VPN or a similar service does not, in itself, render the geo-blocking measure ineffective. To hold otherwise would significantly impair free online access to works that are already in the public domain in certain Member States and would confer excessive territorial scope on copyright protection.

– The Court also considered that a mechanism relying solely on a user’s declaration regarding his or her country of access cannot be regarded as an effective technological measure, since its operation depends entirely on the user’s willingness to complete that declaration truthfully.

– The Court therefore held that a work which is in the public domain in certain Member States but remains protected by copyright in another Member State is not the subject of a “communication to the public” in that latter Member State, within the meaning of Article 3(1) of Directive 2001/29, where it is made available free of charge on a website incorporating an effective geo-blocking measure that is “state of the art”, even where internet users may circumvent that measure through a VPN or a similar service.

– The Court further held that, where a geo-blocking measure is not effective and the publication of the work consequently constitutes a communication to the public, that communication is attributable to the person who published the work on the website. It is not attributable to the provider of a VPN or similar service, since such providers merely offer lawful technical tools and do not play an indispensable role in giving the public access to the protected work.

Case details: https://infocuria.curia.europa.eu/tabs/document/C/2024/C-0788-24-00000000RP-01-P-01/ARRET/323428-EN-1-html

 

Judgment – 08/07/2026 – Aguirre y Compañía, SA v EUIPO, Case T‑350/25

– The case concerned opposition proceedings relating to the application for registration of the EU word mark BLUE PADEL for goods in Class 25, namely “jerseys [clothing]”. The opposition was based on earlier EU figurative marks BULLPADEL and relied, inter alia, on the relative ground for refusal under Article 8(1)(b) of Regulation 2017/1001 concerning the likelihood of confusion.

– On 18 November 2022, Maria Margarida Moreira de Almeida Santos filed an application to register the sign BLUE PADEL. On 28 March 2023, Aguirre y Compañía, SA filed a notice of opposition based on earlier BULLPADEL marks registered, inter alia, for sports clothing, padel racquets and other sporting goods, presented below:

– The Opposition Division rejected the opposition and that decision was upheld by the Fifth Board of Appeal of EUIPO. The Board found that there was no likelihood of confusion in light of the low degree of similarity between the signs, the average level of attention of the relevant public and the absence of proof of reputation or enhanced distinctiveness of the earlier marks.

– Before the General Court, the applicant argued that the Board of Appeal had erred in its assessment of the similarity of the signs, the distinctive character of the earlier marks and the global assessment of the likelihood of confusion.

– The Court held that the relevant public consisted of the general public of the European Union and that, in relation to the goods at issue, that public displayed an average level of attention.

– As regards the signs, the Court found that the common element “padel” would be perceived by the relevant public as non-distinctive, or at most weakly distinctive, since it directly referred to the sport of padel and to goods intended for use in that sport.

– The Court agreed with the Board of Appeal that the signs displayed a low degree of visual and conceptual similarity and an average degree of phonetic similarity. The elements “bull” and “blue” were regarded as differentiating the signs, whereas the shared element “padel” did not play a significant distinctive role.

– The Court also agreed that the evidence submitted did not establish that the earlier mark had acquired enhanced distinctiveness through use or a reputation by the filing date of the BLUE PADEL application. In the Court’s view, the material relating to awards, sponsorship activities, press coverage, sales and marketing activities was insufficient to demonstrate the degree of recognition of the mark among the relevant public.

– The Court nevertheless found that the Board of Appeal had erred in its global assessment of the likelihood of confusion. Although it had correctly established earlier in its analysis that some of the goods covered by the marks were identical, it took account only of a low degree of similarity between the goods at the stage of the overall assessment.

– The Court recalled that the assessment of the likelihood of confusion requires application of the principle of interdependence between all relevant factors, in particular between the similarity of the signs and the similarity of the goods. In those circumstances, it could not be excluded that the identity of some of the goods might affect the overall assessment.

– The Court held that the failure to take into account the identity of some of the goods in the global assessment of the likelihood of confusion constituted an error capable of affecting the outcome of the case.

– The Court upheld the first plea alleging infringement of Article 8(1)(b) of Regulation 2017/1001, annulled the decision of the Fifth Board of Appeal of EUIPO of 26 March 2025 (Case R 1081/2024‑5) and found that there was no need to examine the second plea based on Article 8(5) of that regulation.

Case details: https://infocuria.curia.europa.eu/tabs/document/T/2025/T-0350-25-00000000PI-01-P-01/ARRET_NP/323344-EN-1-html

 

 

Judgment – 08/07/2026 – SCM Biogroup v EUIPO, Case T‑309/25

– The case concerned opposition proceedings relating to the application for registration of the EU figurative mark BIO‑GROUP MEDICAL SYSTEM (presented below) for Class 42 services, including scientific research, laboratory analysis, diagnostic services, bacteriological research, chemical analysis and testing, certification and quality control services:

The opposition was based on the earlier EU figurative mark BIOGROUP, the trade name SCM BIOGROUP, and the domain name biogroup.fr, presented below:

– On 4 April 2022, Bio Group Medical System Srl filed an application to register the aforementioned figurative mark BIO‑GROUP MEDICAL SYSTEM. On 11 July 2022, SCM Biogroup filed a notice of opposition based on Articles 8(1)(b) and 8(4) of Regulation 2017/1001.

– The Opposition Division upheld the opposition, finding a likelihood of confusion. Following an appeal by the applicant, the Fifth Board of Appeal of EUIPO annulled that decision and rejected the opposition in its entirety. The Board found that there was no likelihood of confusion either between the marks at issue or between the contested sign and the trade name and domain name relied upon by the applicant.

– Before the General Court, the applicant argued, inter alia, that the Board of Appeal had incorrectly defined the relevant public, misassessed the similarity of the signs, erred in its assessment of the distinctive character of the earlier mark and carried out an incorrect global assessment of the likelihood of confusion.

– The Court agreed with the Board of Appeal that the services at issue were aimed at professionals operating in specialised scientific and medical fields and that the relevant public displayed a relatively high level of attention.

– As for the common element “biogroup” or “bio‑group”, the Court held that the Board of Appeal had correctly found that it possessed weak distinctive character. The relevant public would perceive that element as referring to a group of undertakings providing services connected with biology, living matter or scientific activities. The mere combination of the words “bio” and “group” did not create a fanciful or unusual expression departing from the meaning of its constituent elements.

– The Court nevertheless found that the Board of Appeal had erred in its assessment of the dominant elements of the signs. Despite its weak distinctive character, the element “biogroup” or “bio‑group” was the element most likely to make an impression on consumers, particularly in light of its length, position and presentation, and consumers would more readily refer to the signs through their verbal element than by describing their figurative elements.

– Consequently, the Court held that the Board of Appeal had incorrectly assessed the visual and phonetic similarity of the signs. The common element “biogroup” or “bio‑group” dominated the overall impression created by both signs.

– The Court found that the signs displayed an average degree of visual similarity and at least an average degree of phonetic similarity. It agreed with the Board of Appeal that the conceptual similarity remained weak because the common element “biogroup” or “bio‑group” was descriptive.

– As regards the distinctive character of the earlier mark, the Court agreed with the Board of Appeal that the evidence submitted was insufficient to establish enhanced distinctiveness acquired through use or reputation. The material produced, including website extracts, press articles and documents relating to Biogroup laboratories, demonstrated use of the sign but did not establish a particularly high degree of recognition among the relevant public.

– The Court further held that the global assessment of the likelihood of confusion was based on the assumption that the signs displayed only a below‑average degree of visual and phonetic similarity. Since the services at issue were treated as identical, those errors directly affected the outcome of the overall assessment.

– The Court therefore held that the Board of Appeal could not validly conclude that there was no likelihood of confusion between the signs at issue.

– The Court upheld the plea alleging infringement of Article 8(1)(b) of Regulation 2017/1001, annulled the decision of the Fifth Board of Appeal of EUIPO of 14 March 2025 (Case R 877/2024‑5) and found that there was no need to examine the plea based on Article 8(4) of that regulation.

Case details: https://infocuria.curia.europa.eu/tabs/document/T/2025/T-0309-25-00000000PI-01-P-01/ARRET_NP/323339-EN-1-html