CJEU clarifies modifying variables in RAM does not infringe copyright - EU trade mark dispute: SUPPORT-FIT

CJEU decision in Case C-159/23: Sony v Datel 

On 17 October, the CJEU delivered a decision to the case C-159/23, that in a nutshell, clarifies the extent of legal protection afforded to computer programs under the Directive 2009/24/EC (Computer Software Directive. The parties involved were Sony, known for distributing consoles and developing video games for PlayStation, and Datel, a UK-based company that develops products to enhance the video game experience.

The dispute between the companies started in 2012, when Sony sued Datel in the German regional court of Hamburg, claiming that Datel had infringed its copyright in the software used in PlayStation Portable (PSP) consoles. Sony argued that Datel's products, including “Action Replay” software and accessories such as “Tilt FX”, allowed players to cheat and modify aspects of the game “MotorStorm: Arctic Edge”, for example by enabling infinite lives and other unauthorised benefits. The method involved connecting the PSP to a computer running the original game and using a USB to modify the console's interface to allow access to restricted options. Likewise, the Tilt FX accessory added a motion sensor to the PSP. 

The case therefore did not involve Datel modifying the software code underlying the game. Rather, both the Datel software ran simultaneously to the, temporarily modifying variables stored in the console's local memory (RAM.

After a lengthy legal process and due to the complexity of the case, the German Federal Court of Justice referred two preliminary questions to the CJEU, which had to decide: 1) if the modification of the content variables from the RAM without modifying the source or object code of the computer program could amount to copyright infringement under the computer software Directive; and 2) whether this alteration could be considered a "transformation" of the original work under the scope of Article 4 (1)(b) of the Directive.

The Court of Justice pointed out that Article 1 of the mentioned Directive protects the "expression" of a program, namely its source and object code, but not its underlying ideas, algorithms or principles. It is therefore concluded that the modification of temporary variables stored in the RAM of a computer does not constitute copyright infringement, since those values are transitory and are generated by the player's interaction, which does not affect the protected source and object code of the computer program, nor does it allow its reproduction or further execution. 

Since the first question was settled and it found that the facts of the case were not constitutive of copyright infringement, the Court did not address the second one.

GCEU decision in Case T-1072/23 on Nike’s SUPPORT-FIT EU trade mark application

On 23 October, the GCEU ruled in case T-1072/23 on a dispute concerning the EU trade mark SUPPORT-FIT owned by the US company Nike Innovate CV. 

In 2022, Nike applied to the European Union Intellectual Property Office (EUIPO) to register the EU mark SUPPORT-FIT as a word mark for footwear, clothing and headgear, all in Class 25 of the Nice Classification. However, the examiner rejected the application for all goods except those in the headgear category, considering that the mark lacked distinctiveness and was descriptive of the goods in question. 

Nike appealed the examiner's decision to the EUIPO’s Board of Appeal. However, the Board dismissed the appeal on the ground that the mark would be perceived as descriptive of the goods, in particular in relation to their function of supporting a part of the body. As a result, the Board also concluded that the mark was both descriptive under Article 7(1)(c) and devoid of any distinctive character under Article 7(1)(b) of the EUTMR, with regard to the goods in question.

Nike appealed the decision to the GCEU, which had to determine whether the mark was descriptive and lacked distinctiveness. The Court upheld the decision of the EUIPO’s  Board of Appeal to refuse registration of the mark "SUPPORT-FIT". The Court concluded that the term 'support' refers to items that provide support and 'fit' refers to the suitability of a clothing item, leading the relevant public (an English-speaking public with a moderate level of attention) to perceive the mark as a direct description of the intrinsic characteristics of the goods, which are to provide support and fit well to the body during physical activity. Although Nike claimed that the mark was an invented term that did not exist on the market, the Court stated that despite the fact that the term was not found in a dictionary or was grammatically incorrect, it did not prevent the public from perceiving it as clear and direct information about the products, thereby justifying the refusal of registration under Article 7(1)(c) of the EUTMR. Since the Court considered that the descriptiveness of the mark was sufficient to reject the application, it did not examine the second ground relating to lack of distinctiveness.