Now in its third year, Class 46 is dedicated to European trade mark
law and practice. This weblog is written by a team of enthusiasts who
want to spread the word and share their thoughts with others.
TUESDAY, 1 DECEMBER 2009 Poland: reclaim the windows – the saga continues
A year ago, this Clas46 team member has published a short post entitled "Reclaim the windows" and the life, being a constant state of change, has written the rest of this story, which he feels obliged to report on.
On 27 November 2009, Cezary Grabarczyk, the Polish Minister of Infrastructure signed the amendment to the Regulation on technical conditions of use of residential buildings, (in Polish: Rozporządzenie zmieniające rozporządzenie w sprawie warunków technicznych użytkowania budynków mieszkalnych) of 27 November 2009, published in Journal of Laws (Dziennik Ustaw) of 1999 No. 74, item. 836. The provisions of this amendments govern the possibility of installing big media advertising boards and vinyl's mesh on which different advertisements are displayed and other devices not related to the use of housing in the multi-family residential buildings.
A multi-family residential building should be used in such a way that its rooms have no restrictions to daytime lighting. The provisions allow only for the installation of equipment and advertising space on the walls without windows, the windows of the staircases or commercial premises. However, the prohibition does not apply in the case of construction works on the building’s facade. The amendments will eliminate the negative impact that big media advertisings placed one housing buildings have on their occupants.
The Regulation enters into force after 14 days from the date of promulgation. All kind of advertising devices and media and other devices not related to the use of the building or apartment that were installed on residential flats before the entry into force of the aforementioned provisions will stay, but not longer than 18 months from the date of entry into force.
TUESDAY, 1 DECEMBER 2009 Finland: The City of Turnip
According to the Finnish press, the city of Kuopio is binning its logo, which it launched only nine years ago. In the eyes of the locals the ill-starred logo bore resemblance to everything from a turnip to a male contraceptive. Also the slogan associated with the logo, “KUOPIO - PAREMPI NIIN” (KUOPIO – BETTER THAT WAY), was not the greatest success story.
With a view to obtaining a proverbial face lift the city of Kuopio has now organized a competitive bidding for the new logo. As reported in the local newspaper, Savon Sanomat, the new logo will be based on a more traditional element; Kuopio´s old coat of arms from 1823.
TUESDAY, 1 DECEMBER 2009 Cheap, cheaper, Czech: CAC to offer UDRP proceedings for EUR 500
It has always been ICANN's intention to accredit several UDRP dispute resolution service providers to ensure competition and avoid the extraction of monopoly rents by dispute resolution service providers. It seems the race to the bottom is now officially open.
The Czech Arbitration Court (CAC), known for its dispute resolution services for the TLD .eu, is since January 2009 also an ICANN-approved dispute resolution service provider for .com, .net .org and other generic TLDs. It proposes an expedited UDRP proceeding for just EUR 500 (approx. USD 750). That's about half the WIPO's fee of USD 1,500 for a proceeding involving up to five domain names. The fee is split 50:50 between the panelist and the CAC.
In order to qualify for an expedited hearing, the complainant must limit arguments to 2,000 words, and the respondent must not file a response. If he does, the additional fee for the "normal" proceeding must be paid if the complainant wants to continue the proceeding.
Also rumoured to plan a fast-track procedure is WIPO; however, hard facts on the proposal are still hard to come by.
The number of domain disputes per registered domain names is falling, as domainnamewire notes. This could partially explain the competition on price (it sucks to be in a shrinking market).
That does not mean, however, that the total number of disputes is falling, as the following graph from WIPO shows (WIPO Arbitration and Mediation Center is not the only dispute resolution service provider, but if past experience is an indicator, the trend for all providers is very similar). 2008 was a record year in numbers of UDRP cases filed with the WIPO. Seems like CAC wants a (larger) part of the action. All the better for consumers - in this case, trade mark proprietors.
TUESDAY, 1 DECEMBER 2009 Genuine use of the earlier mark: COLORIS of 2003 v COLORIS of 1998
The latest trade mark decision of the CFI relates to establishing genuine use of an earlier mark. The applicant (Esber SA) claimed that its registration of COLORIS for goods in Classes 2 (paint, lacquers and dyes) and 16 (publications, wrapping paper, artists' materials etc) in 2003 did not infringe the intervener's mark COLORIS registered for Class 2 goods in 1998. To Esber's disappointment, the CFI was not convinced by its arguments.
The applicant's first allegation related to the complexity of the earlier mark by virtue of the use “global coloring concept” or “gcc” together with the image, essentially rendering the marks different. The Court responded in para 30: “the assessment of the distinctive or dominant character of one or more components of a complex trade mark must be based on the intrinsic qualities of each of those components, as well as on the relative position of the different components within the arrangement of the trade mark”. Indeed, the additional words were merely descriptive and their size was not predominant in relation to that of the mark. The CFI also dismissed any reference to the figurative element of the globe saying that it “was not creative and unusual”.
The genuine use itself was established on the basis of invoices and other files which were presented by the intervener and fell within the relevant period (5 August 1998 to 4 August 2003). The copy of a fax dated 19 November 1998 showing a sample of a label of the type affixed to the metallic cans for colorants was the conclusive evidence in the case. It demonstrated that the mark was almost identical to the one seen in later photographs. Moreover, the “commercial volume of the overall use” was proved by the sale of some thousands of cans with COLORIS mark on them by the manufacturer of metallic cans to the intervener in 2002 and 2003.
The appeal was dismissed with costs to be paid by Esber.
MONDAY, 30 NOVEMBER 2009 Breaking news: eBay fined €1.7 million for failure to block luxury brand sales Today online auction host eBay was ordered by a French court to pay a €1.7 million fine for failing to comply with an order to prevent the sale online of goods made by LVMH, whose portfolio of luxury brands includes Louis Vuitton, Moet Hennessy, Givenchy and Christian Dior. It is reported that, since the order in 2008, more than 1,300 incidents had been recorded in which users advertised cosmetics and perfume made by the company. Given the significance of this ruling and its impact on the brand-owning community, as well as the encouragement of marketing plans that are based on selective distribution agreements, it is likely that further comments will be forthcoming from MARQUES and its members.
MONDAY, 30 NOVEMBER 2009 Scope of protection of a protected designation of origin
Vacherin Mont-d'Or is a protected designation of origin (PDO) in Switzerland and the EU for a soft cheese from raw milk made in the Swiss/French Jura. A cheese producer from the eastern part of Switzerland makes a cheese that tastes and looks similar to Vacherin Mont-d'Or - it is also sold in a wooden ring, although not in a wooden box typical for Vacherin Mont-d'Or - but marketed under a completely different name ("Krümmenwsiler Försterkäse"). The association of Vacherin Mont-d'Or sued.
The Federal Administrative Court had to decide whether the protection conferred by a PDO is limited to the verbal element actually registered or also extends to the description of the product. It held that the object of protection is the registered verbal element, in this case Vacherin Mont-d'Or. However, when assessing the likelihood that the relevant consumers are mislead, bot the appearance of the product as well as its labelling was to be taken into account, in a kind of sliding scale. A vaguely similar verbal element could still lead to confusion if the overall appearance of the product was very similar to the product protected by the PDO.
However, in the case at thand, the verbal elements were so dissimilar - "Vacherin Mon d'Or" versus "Krümmenwsiler Försterkäse" - that the similar appearance of the products was not sufficient to mislead anybody. The PDO did not confer a monopoly on the type of product per se as long as the makers of the same product produced outside the area of the PDO did not create the impression that their products were originating from the protected area.
SUNDAY, 29 NOVEMBER 2009 Now mustard and chestnuts secure PGI protection
Commission Regulation 1131/2009 of 24 November 2009 has conferred Protected Geographical Indication status on the French mustard paste, Moutarde de Bourgogne.
Commission Regulation 1132/2009 of 24 November 2009 has conferred Protected Geographical Indication status on the Italian chestnut, Marroni del Monfenera.
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