Facebook, French newspapers and Kärcher

Facebook and French publishers come to a agreement on neighbouring rights

The battle raging between Facebook and news media has taken a new turn recently. This week, Facebook announced that it had reached an agreement with French news publishers’ lobby on remuneration over the use and dissemination of their content. A few days previously, it had been announced that Facebook had reached a similar agreement with two of the most important French newspapers: Le Monde and Le Figaro.

To understand the context, let’s take a step back to a few years ago. News media around the world have been clamouring for years that Facebook was taking undue advantage by posting links to and parts of their content for its own benefit. Whenever links to contents created by these media outlets is being made available on Facebook’s platform, Facebook benefits from it and is capable to monetise this traffic for its own benefit, while in principle not having to pay anything to the media outlets who created the content. As such one might argue (and some do) that the newspapers benefit from such visibility through these platforms and that talks about copyright infringement might be greedy. The issue with this argument lies in the overwhelming power that these platforms – Facebook and Google spring to mind – have over these content creators, in other words the fact that they have the power to give or take visibility to them and therefore influence them.

The European Union, through the 2019 Directive on Copyright in the Digital Single Market, created a specific neighbouring right for news content online, compelling online platforms such as Facebook and Google to discuss licensing terms with news content creators for the use of their articles.

These negotiations have been long and hard, but the disputes between news creators and Facebook and Google seem to be coming closer to a resolution, at least in some countries. Facebook’s announcement came a few months after a similar deal was struck by Le Monde and Le Figaro’s lobby with Google in France. Australia also legislated on the matter earlier this year, forcing negotiations between online platforms and news organisations.

The Yellow Kärcher colour mark goes to court and wins

Kärcher is one of the major players in the market of high-pressure cleaners, whose products are not only known for their quality, but also for their distinctive bright yellow colour. So much so that Kärcher registered this bright yellow colour twice as a Benelux colour trade mark, once in 1990 and another in 2012.

Kärcher brought a trade mark infringement claim against Varo for selling high-pressure cleaners in a similar yellow colour in the Netherlands. Varo defended itself by claiming that the yellow colour claimed by Kärcher was not a sign and lacked distinctive character. The Hague District High Court gave its decision this week, accepting Kärcher’s claims that their colour trade mark had indeed been infringed. In doing so, it rejected Varo’s arguments, as the use of a specific yellow colour for high-pressure cleaners had acquired the necessary distinctiveness to protect it as a trade mark since it served as a sign of origin of Kärcher’s products in the eyes of the consumer.

What is interesting however, and one of the key takeaways is the fact that the Court, despite accepting Kärcher’s infringement arguments relating to the 2012 trade mark, stated that the early colour trade mark was not valid (and therefore could not be infringed) because the application lacked any mention to a recognised colour code. Describing the colour (e.g. “bright yellow as applied to high-pressure cleaner”) is not enough and an internationally recognised colour code should be provided as part of the application.