FRIDAY, 1 MAY 2009
Coming up next week in the ECJ
The coming week is a very busy one if you're interested in trade mark law and are based in Luxembourg. Apart from a large amount of activity in the Court of First Instance, the Court of Justice itself is fairly preoccupied with trade matters. Next Thursday 7 May is particularly:
* The Court will be ruling in Case C-398/07 P Waterford Wedgwood plc v Office for Harmonisation in the Internal Market, an application by WW to annul the judgment of the Court of First Instance in Case T-105/05 and to have the action remitted to that Court. WW, which owned the WATERFORD mark for glasses, opposed an application to register WATERFORD STELLENBOSCH for wines. The Opposition Division held the marks dissimilar and refused the opposition under Article 8(1)(b) of Regulation 30/94, without considering the Article 8(5) ground; the Board of Appeal disagreed, considered that a likelihood of confusion existed and allowed the opposition. The CFI, allowing the WW's appeal, ruled that there was no likelhood of confusion since the parties' respective goods were neither similar nor sufficiently complementary. The opposition was however remitted for further consideration of the Article 8(5) ground. This current appeal relates to the CFI's ruling under Article 8(1)(b).
* The Advocate General will be giving an Opinion in Case C-446/07 Alberto Severi, Cavazzuti e figli v Regione Emilia-Romagna
is a reference for a preliminary ruling from the Tribunale civile di Modena, Italy on a trade mark/GI matter:
"Must Articles 3(1) and 13(3) of Regulation ... 2081/92... in relation to Article 2 of Directive 2000/13/EC ... be interpreted as meaning that the name of a food product containing geographical references, for which, at national level, the submission of an application to the Commission for registration as a protected designation of origin (PDO) or a protected geographical indication (PGI) within the meaning of those regulations has been 'rejected' or blocked, must be considered generic at least throughout the period for which such 'rejection' or blocking remains effective?
Must Articles 3(1) and 13(3) of Regulation ... 2081/92 ... in relation to ... Article 2 of Directive 2000/13/EC ... be interpreted as meaning that the name of a food product which is evocative of a place not registered as a PDO or PGI within the meaning of those regulations may be legitimately used in the European market by producers who have used it in good faith and uninterruptedly for a considerable period before the entry into force of Regulation ... 2081/92 ... and in the period following the entry into force of that provision?
Must Article 15(2) of the First Council Directive 89/104 ... be interpreted as meaning that the proprietor of a collective mark for a food product containing a geographical reference is not allowed to prevent producers of a product having the same characteristics from using to describe it a name similar to that contained in the collective mark, where those producers have used that name in good faith and uninterruptedly over a period of time considerably pre-dating the registration of that collective mark?".
* A hearing takes place in Case C-278/08 Die BergSpechte Outdoor Reisen und Alpinschule Edi Koblmüller GmbH v Günter Guni and trekking.at Reisen GmbH
, a reference for a preliminary ruling from the Oberster Gerichtshof, Austria on:
"Must Article 5(1) of the First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks ('Directive 89/104') 1 be interpreted as meaning that a trade mark is used in a manner reserved for the proprietor of the trade mark if the trade mark or a sign similar to it (such as the word component of a word and figurative trade mark) is reserved as a keyword with a search engine operator and advertising for identical or similar goods or services therefore appears on the screen when the trade mark or the sign similar to it is entered as a search term?
If the answer to Question 1 is yes:
(A) Is the trade mark proprietor's exclusive right infringed by the utilisation of a search term identical with the trade mark for an advertisement for identical goods or services, regardless of whether the accessed advertisement appears in the list of hits or in a separate advertising block and whether it is marked as a 'sponsored link'?
(B) In respect of the utilisation of a sign identical with the trade mark for similar goods or services, or the utilisation of a sign similar to the trade mark for identical or similar goods or services, is the fact that the advertisement is marked as a 'sponsored link' and/or appears not in the list of hits but in a separate advertising block sufficient to exclude any likelihood of confusion?"
Posted by: Jeremy Phillips @ 08.31
Tags: forthcoming cases,