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TUESDAY, 6 OCTOBER 2009
Company names and trade marks in the Russian Federation
Class 46 has received a very helpful note by two members of international law firm Hogan & Hartson's Moscow office, Julianna Tabastajewa (Counsel) and Yulia Yarnykh (Associate) on the interaction of the law and practice in the Russian Federation relating to trade marks and company names -- particularly when someone has registered a company name based on someone else's trade mark. You can read the full text of this note here.
Posted by: Jeremy Phillips @ 23.11
Tags: Russian Federation, |
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TUESDAY, 6 OCTOBER 2009
 The European Court of Justice ruled today in Case C‑301/07, PAGO International GmbH
v
Tirolmilch registrierte Genossenschaft mbH, that Austria -- though it is only a single Member State out of the 27 Member States comprising the European Union, is capable of being a "substantial part of the territory of the European Community" for the purposes of the protection of a mark having a reputation under Article 9(1)(c) of the now-repealed and consolidated Council Regulation 40/94 on the Community trade mark.
In the dispute leading to the reference, the owner of the Community trade mark in question had a wide reputation in Austria but not beyond it; the question arose from infringement proceedings brought in respect of a local rival trader in Austria. The Court applied the principle it enunciated earlier in Case C‑375/97 General Motors [1999] ECR I-5421, in which it held that a substantial part of the Benelux was capable of sufficing for this purpose.
Posted by: Jeremy Phillips @ 21.34
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MONDAY, 5 OCTOBER 2009
Latest ETMR, Trademark World
 The October issue of Sweet & Maxwell's European Trade Mark Reports has now been published. Cases included in this issue include the major rulings of the Court of Justice in the European Communities in L'Oréal v Bellure (reference to names of well-known perfumes when advertising 'smell-alikes'), Chocoladefabriken Lindt & Sprüngli AG v Franz Hauswirth (the 'chocolate bunnies' dispute, establishing criteria of bad faith) and Zino Davidoff SA v Bundesfinanzdirektion Südost (whether proprietors of Community trade marks are proper applicants for customs actions), as well as the decision of the High Court for England and Wales in Daimler AG v Sany Group which criticised the lack of consistency as between OHIM and the UK IPO in the treatment of designations of Classes.
Also published is the October edition of Informa's ten-times-a-year Trademark World, which contains news and discussions of several matters of interest to the European trade mark owner and the region's practitioners. Topics covered include the impact of Lithuania's constitution upon its national trade mark law, the operation of the Company Names Tribunal in the UK and revocation of registered marks for non-use in Russia.
Posted by: Jeremy Phillips @ 12.55
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FRIDAY, 2 OCTOBER 2009
CIPA conference presentation: German courts' position on AdWords
This Class46 member had the honour to speak at the annual CIPA Congress in London today (The IP System under Attack) at a workshop on the ominpresent topic of "AdWords/keywords". My presentation covered the German perspective and outlines the evoloution of the German courts' position from the "Impuls" case on meta-tags to the recent decisions in PCB (I ZR 139/07 ) and the ECJ referral in "Bananabay" (I ZR 125/07) aka "Eis.de GmbH v BBY Vertriebsgesellschaft mbH" (Case C-91/09).
While this presentation will soon be aout of date once the several ECJ decisions on AdWords/keywords have been handed down, it will still be an interesting exercise to see whether the German courts had got it right when they decided in the parallel case on company names (Beta Layout, I ZR 30/07) that the average consumer would not be confused by the search engine's layout and be able to distinguish between organic search results and sponsored links. Let's see whether the ECJ agrees - if the AG's opinion is any indication, then the ECJ just might.
If you are interested in a copy of this presentation, please feel free to email me at bclark (at) boult.com.
Posted by: Birgit Clark @ 16.20
Tags: adwords, |
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THURSDAY, 1 OCTOBER 2009
Greece: amendment of the rules regarding time-bar for unfair competition claims
 A tiny bit of news for those litigating unfair competition/ passing off claims in Greece ( or even trade mark infringement claims, as the unfair competition legislation is usually invoked as an accessory legal base in the relevant actions). Under the recently adopted Act No. 3784/2009, the time-bar for unfair competition claims has been extended from 6 to 18 months in case injunction is sought and from 3 to 5 years in the case of damages. The clock starts ticking as from the date the claimant became aware of the infringement and the identity of the infringer. This is indeed good news for the owners of unregistered marks in Greece. On the other side of the fence, trade mark owners enjoy a 20 year time-bar for injunction claims (so no worries there).
Posted by: Nikos Prentoulis @ 09.04
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WEDNESDAY, 30 SEPTEMBER 2009
Belgium: a stroke did not make the Smiley happy
 In its decision of 29 September the CFI considered the issue of the absolute grounds for refusal in relation to The Smiley Company SPRL's mark (T 139/08). The applicant claimed that the sign, registered for the rather interesting variety of classes (14- jewelery, 18- trunks and suitcases and 25- clothes and footwear), was not devoid of distinctive meaning and was recognisable by the relevant public. The applicant submitted that the the little vertical stroke on the half smile sign was not intentional, but rather the result of poor print quality. Interestingly enough, having made a formal note of the claim, the Court proceeded to ruling upon the above issue thus making it of primary importance. Otherwise the subject matter before the Court would be changed. An undesirable situation, of course.
The CFI chose to criticise the artistic creativity and imaginativeness of the sign's creator whilst assessing the mark's distinctiveness. Eventually, a “small stroke in the middle of the curve, towards the bottom” was held to be a very simple and banal design, which can not identify the commercial origin of the goods. Apparently, a stroke could not be instantly memorised by an “even relatively attentive member of the public”, that can recognise signs such as simple stripes. Indeed, a small stroke does not create an overall impression of a surface area to the extent that a stripe does...
In the end the Court did pay attention to the applicant's actual argument that the stroke is not of paramount importance and the sign is in fact part of the Registered Community Trade Mark (smiley). However, even in this scenario the average consumer is unlikely to find resemblance between, and subsequently, to put trust in, the registered smiley mark, the half smile and the imperfect picture of the sign he may have in mind.
Posted by: Sasha Yelnik @ 15.42
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WEDNESDAY, 30 SEPTEMBER 2009
Does OHIM need a fresh name?
Here's a little bit of fun for the end of the summer. The IPKat is conducting an opinion poll as to whether the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) could do with a fresh name or not. Although there are still eleven days to go, early indications are that the body's existing name has quite a few supporters. If you'd like to take a peek at the nominations and even cast a vote, here's the article about the name. The 'ballot box' is in the side bar on the left side of the page. Posted by: Jeremy Phillips @ 11.42
Tags: New name for OHIM, |
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