MONDAY, 22 SEPTEMBER 2008
Last week in the ECJ
In the European Court of Justice last week, there were three matters of interest for trade mark owners.
1. Advocate General Mazak delivered an Opinion in Case C‑442/07 Verein Radetzky-Orden v Bundesvereinigung Kameradschaft ‘Feldmarschall Radetzky’, a reference from Austria on genuine use in which the Advocate General advised:
"Article 12(1) of First Council Directive 89/104 ... should be construed as meaning that a trade mark is put to genuine use where a non-profit-making association uses the trade mark, inter alia, in announcements for public fund-raising events, when collecting donations from the public and distributing donations, on business papers addressed to members of the public and on advertising material soliciting donations from the public, where the trade mark has been registered in connection with such services. It is thus for the Oberster Patent- und Markensenat to assess the facts in the main proceedings in the light of that guidance".Click here for the facts and a longer note on this Opinion.
2. The Hearing took place in Case C-343/07 Bavaria N.V. and Bavaria Italia Srl v Bayerischer Brauerbund e.V. This is a reference for a preliminary ruling concerning the conflict between the BAVARIA trade mark for a Dutch beer and the protected geographical indication Bayerische Bier, for beer brewed in a particular region of Germany. Click here for more details.
3. In Case C-468/06 Lelos v GSK, the Court gave its ruling in a reference from the Greek competition authorities concerning a failure by GSK to meet orders submitted to it by Greek wholesalers which GSK deemed to be well in excess of demand on the Greek market. In short, the court ruled that although it is an abuse of a dominant position for an undertaking to refuse to supply wholesalers in order to stop parallel importation, an undertaking can stop supplying if orders are placed which are out of all proportion to those previously sold by the same wholesalers to meet the needs of the market in that Member State. It is for Member States' courts to determine whether orders are not 'ordinary', i.e. if they are out of proportion to the needs of that Member State's market. Click here for more facts and analysis.
Posted by: Jeremy Phillips @ 00.07