CJEU rules on remuneration for the online use of press publications - EU trade mark dispute: Tetra Laval’s octagonal carton shape

CJEU rules on remuneration for the online use of press publications

In May 2026, in case C-797/23, the Court of Justice of the European Union (CJEU) ruled that Member States may provide for fair remuneration when press publishers authorise online service providers to use their publications. However, publishers must remain free to refuse or grant permission without charge, and providers cannot be required to pay if they do not use the publications.

The case concerned a dispute between Meta Platforms Ireland Ltd, which operates Facebook in the European Union, and the Italian Communications Regulatory Authority (AGCOM). Under Italian law, press publishers have exclusive rights over certain online uses of their publications, and fair remuneration is provided where information society service providers use that content.

In January 2023, AGCOM adopted Decision No. 3/23/CONS, which established criteria for calculating this remuneration. Under the Italian system, service providers must negotiate with publishers and provide the necessary information to determine the amount. They must also refrain from limiting the visibility of publishers' content in search results during negotiations. AGCOM may establish the applicable reference criteria and, if the parties cannot agree, determine the amount. It may also impose penalties for failing to provide the required information.

Meta challenged the decision before the Lazio Regional Administrative Court. The company argued that Article 15 of Directive (EU) 2019/790 on copyright in the Digital Single Market grants press publishers exclusive rights rather than an independent right to remuneration. Meta also questioned whether the obligations imposed on service providers and AGCOM’s powers were compatible with the freedom to conduct a business, as protected by Article 16 of the EU Charter of Fundamental Rights

The Italian court referred the matter to the CJEU. The court asked whether Article 15 permits national legislation to establish fair remuneration and impose negotiation and information obligations on service providers. It also asked whether the legislation could prevent service providers from reducing the visibility of publishers’ content during negotiations and authorise a public authority to intervene when the parties cannot agree.

First, the CJEU clarified that Article 15 grants press publishers exclusive rights to reproduce and make their publications available to the public for online use by information society service providers. Member States cannot alter the nature or scope of these rights. However, they do have some discretion over the procedures and measures used to ensure that these rights can be exercised effectively.

These rights are preventive in nature. Subject to applicable exceptions and limitations, service providers must obtain prior authorisation from the publisher before using protected press content. A Member State cannot replace these exclusive rights with a mere the right to compensation. This would enable publishers to receive payment, but not prohibit use.

However, publishers may make their authorisation conditional upon receiving remuneration. Therefore, a national system intended to ensure fair remuneration is permissible, provided that the payment constitutes consideration for an authorised use. Publishers must retain the right to refuse permission or authorise use free of charge. Likewise, providers must be free to decide whether to use the publications, and they cannot be required to pay if they do not use or intend to use them.

In addition, the Court accepted that providers using or intending to use press publications may be required to negotiate with publishers, provide the necessary information to calculate remuneration, and avoid reducing the visibility of content during negotiations. According to the Court, these obligations can help ensure fair negotiations, since service providers generally possess the necessary information to evaluate the economic value of online usage. The visibility requirement may also prevent publishers from coming under pressure while remuneration is being negotiated. Therefore, AGCOM may establish reference criteria, determine remuneration in cases of disagreement, monitor compliance with the information obligation, and impose penalties. However, the parties must retain the freedom to choose whether or not to conclude an agreement.

The CJEU acknowledged that these obligations and AGCOM’s enforcement powers could limit providers' freedom to conduct business. Subject to verification by the Italian court, the CJEU considered that these restrictions appeared justified and proportionate. The aim is to balance this freedom with the protection of intellectual property and the freedom and pluralism of the media. Thus, the Court held that Articles 15 of Directive 2019/790 and 16 and 52 of the Charter do not preclude a system such as the Italian one, provided certain conditions are met. The Lazio Regional Administrative Court must now apply the CJEU’s interpretation and determine whether Italian legislation and the decision of AGCOM comply with these requirements.

EU trade mark dispute: Tetra Laval’s octagonal carton shape 

On 3 June 2026, in case T-104/25, the General Court ruled that the octagonal shape of Tetra Laval’s carton was necessary to achieve several technical results and could not be protected as an EU trade mark.

In 2004, the Swiss company, Tetra Laval Holdings & Finance SA, registered the three-dimensional mark (EUTM no. 001620566). Following a partial revocation due to non-use, the trade mark covered paper or plastic-coated paper packaging containers and materials in Class 16 of the Nice Classification. The mark featured a tall carton, similar to those used for drinks. When viewed from above, it had eight sides: four broad walls and four narrower, inward-curving corners. The carton narrowed slightly in the middle, widening towards the top and bottom. Its top is sealed by a fin that extends into two flaps folded down along opposite sides.

In January 2022, the Chinese company Lami Packaging (Kunshan) Co. Ltd filed an application for a declaration of invalidity based on Article 51(1)(a), read in conjunction with Article 7(1)(e)(ii) of Regulation No. 40/94, the legislation in force at the time the mark was filed. These provisions exclude signs consisting exclusively of the shape of goods that are necessary to obtain a technical result. 

The EUIPO Cancellation Division upheld the application and declared the mark invalid. However, the Fourth Board of Appeal later reversed that decision. While it acknowledged that the shape had technical characteristics, the Board considered that the resulting advantages were related to the manufacturing process rather than the carton's functionality.

The General Court confirmed that Article 7(1)(e)(ii) applies only to technical results arising from the use of a product. It does not apply merely because a shape makes a product easier or more efficient to manufacture. However, the Court considered that the Board of Appeal had applied this distinction incorrectly. According to the Court, the carton’s characteristics were not limited to the manufacturing process. They enabled it to hold liquids or food products while ensuring stability and ease of handling. Therefore, they contributed directly to the product’s technical function during use. 

In addition, the Court examined the relationship between the carton’s capacity and the amount of material required to manufacture it. Compared with traditional rectangular cartons, the shape of this one enabled more liquid or food to be contained using the same amount of material. This improvement to the container’s basic function could not be considered solely a manufacturing advantage. The Court also clarified that the exclusion is not limited to shapes that produce improved or innovative technical results. It is sufficient for the essential characteristics of the shape to be necessary to obtain a technical result. The existence of alternative shapes capable of achieving the same result is irrelevant.

Tetra Laval argued that the truncated corners gave the carton a distinctive appearance. The Court acknowledged that Article 7(1)(e)(ii) may not apply if an important non-functional or ornamental feature is an essential characteristic of the trade mark. However, a characteristic does not cease to be technical merely because it also has aesthetic value. In this case, the truncated corners contributed to the carton’s capacity, stability and ease of handling. Therefore, the General Court annulled the Board’s decision, thereby invalidating the mark.