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FRIDAY, 27 NOVEMBER 2009
German Federal Patent Court: “Bollywood macht glücklich!” (tr: Bollywood makes you happy!).
 This Class 46 member has been reviewing some recent German trade mark cases and has so come across a nice little court order by the German Federal Patent Court concerning the registrability of the trade mark “Bollywood macht glücklich!” (in English: Bollywood makes you happy!).
Perhaps not entirely surprisingly, the court held that the "slogan type" composite mark “Bollywood macht glücklich!” was not distinctive enough to qualify for trade mark protections for film works and TV entertainment.
The relevant consumer circles would merely understand the composite mark as a laudatory advertising statement in the sense that the goods and services offered under the mark were related to the Indian film industry and contributed to feeling a sense of happiness. As such the composite mark was as a laudatory promotional statement and did not indicate a specific trade origin.
The court was not swayed by the claimant's contention that the mark was short, concise and ambiguous, nor did the judges agree that the stylisation of the mark rendered it distinctive. The judges held that the fact that the mark was open to a certain degree of interpretation did not make it distinctive. Furthermore, the level of stylisation, which was similar to the usual Word type fonts Pristina, Monotype Corsiva, Blachadder, was not unusual enough to overcome the descriptive content of the word elements and create an overall distinctive impression that could denote trade origin.
Court order of 15 June 2009, case reference 27 W (pat) 36/09 – Bollywood macht glücklich!. The court order can be retrieved by clicking here (in German).
Posted by: Birgit Clark @ 13.25
Tags: Bundespatentgericht, Germany, German trade marks, slogan, |
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FRIDAY, 27 NOVEMBER 2009
Poland: new Chairman of the Polish Chamber of Patent Attorneys
Anna Korbela is the new Chairman of the Polish Chamber of Patent Attorneys. The Chamber is a professional self-government of Polish patent attorneys responsible inter alia for taking action in order to provide the proper exercise of a patent attorney profession, representing patent attorneys and trainees and protecting their professional interests, cooperating in the development and exercise of industrial property rights, professional training and education of patent trainees, supervision of proper practice of the profession by patent attorneys and trainees, conducting researches on industrial property law issues.
Posted by: Tomasz Rychlicki @ 12.47
Tags: Poland, Polish law, Polish patent attorneys, Chairman of the Polish Chamber of Patent Attorneys, Polish Chamber of Patent Attorneys, |
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FRIDAY, 27 NOVEMBER 2009
Bud court asks ECJ: what is "acquiesced"?
The Court of Appeal for England and Wales has today published the final version of the questions which it is referring to the Court of Justice of the European Communities for a preliminary reference in Budejovicky Budvar Narodni Podnik v Anheuser-Busch Inc
1. What is meant by “acquiesced” in Article 9(1) of Council Directive 89/104/EEC and in particular:
(a) is "acquiesced" a community law concept or is it open to the national court to apply national rules as to acquiescence (including delay or long-established honest concurrent use)
(b) if "acquiesced" is a community law concept can the proprietor of a trade mark be held to have acquiesced in a long and well- established honest use of an identical mark by another when he has long known of that use but has been unable to prevent it?
(c) in any case, is it necessary that the proprietor of a trade mark should have his trade mark registered before he can begin to “acquiesce” in the use by another of (i) an identical or (ii) a confusingly similar mark?
2. When does the period of “five successive years” commence and in particular, can it commence (and if so can it expire) before the proprietor of the earlier trade mark obtains actual registration of his mark; and if so what conditions are necessary to set time running?
3. Does Art 4(1)(a) of Council Directive 89/104/EEC apply so as to enable the proprietor of an earlier mark to prevail even where there has been a long period of honest concurrent use of two identical trade marks for identical goods so that the guarantee of origin of the earlier mark does not mean the mark signifies the goods of the proprietor of the earlier and none other but instead signifies his goods or the goods of the other user?
Posted by: Jeremy Phillips @ 12.40
Tags: ECJ reference, acquiescence, |
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FRIDAY, 27 NOVEMBER 2009
New UK rules protect 'Scotch Whisky' appellation
The Scotch Whisky Regulations 2009 (SI 2009/2890), in force since Monday 23 November, seek to improve protection of Scotch Whisky against cheap imitations. The regulations define five categories of Scotch Whisky (which may be supplemented by the five regional names Campbelltown, Islay, Highland, Lowland and Speyside) and prohibit the labelling of whisky with the name of a distillery or a similar name unless it comes from that distillery.
All Scotch Whisky must be wholly matured in Scotland; the export of single malt Scotch Whisky is prohibited unless it has been bottled and labelled. A transitional period of two years applies to the new labelling requirements and three years for the new bottling requirements.
This provision is seen as supplementing the protection already accorded to geographical indications under Regulation 510/2006.
Posted by: Jeremy Phillips @ 10.21
Tags: Scotch Whisky, |
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FRIDAY, 27 NOVEMBER 2009
Austria: 900,000th .at-domain registered
 Good news from the Austrian nic.at, the central office for the registration and administration of all domains ending with .at, .co.at or .or.at. On its website nic.at proudly informs that
".. (a) new frontier has been crossed: in November 2009 the 900,000th .at-domain was registered. Even in an economically challenging time, the domain growth in Austria continues unabatedly. For more than ten years now the .at-zone has had an average growth of 10% per year. And there doesn't seem to be an end to this trend."
Class 46 has just checked and this positive trend seems to be continuing: as per today's date 901.792 .at-domains have been registered.
More information can be found on nic.at's website here (in English).
More statistics dating back to 1998 can be found here (in English).
Posted by: Birgit Clark @ 08.47
Tags: Austria, domain names, nic.at, |
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THURSDAY, 26 NOVEMBER 2009
Get ready for the .eu IDN landrush on 9 December, midnight!
As of 10 December 2009, it will be possible to register domain names in the TLD .eu containing international characters, such as the Swedish å, the German ü, the Romanian ș and characters from the Bulgarian and Greek alphabets as a whole (not, however, the German ß, see list of supported characters). There are some valuable trademarks with international characters - think Hermès.
There will be no sunrise period, it will be first come, first served ("landrush"). This means that if your trade mark contains any special character and you want to avoid the cost of litigation to get your .eu domain, better be ready. Also, generic domain names will go quickly if experience is an indicator.
You should therefore be ready to register come midnight 9 December - I am not sure it's midnight CET or EET, which is one hour earlier (do any readers have an idea?). Some registrars offer "pre-registration", however, this does not guarantee that you will receive the desired domain name (well, nothing will). The registrars just promise to submit the pre-registered domain names as early as possible.
More information from Eurid here.
Posted by: Mark Schweizer @ 16.57
Tags: .eu, IDN, domain name, , |
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THURSDAY, 26 NOVEMBER 2009
Manifest inadmissibility of reference for preliminary ruling
A reference for a preliminary ruling from the Bulgarian Sofia City Court, “Sofiyski gradski sad” (Case C-181/09) has been declared “manifestly inadmissible” pursuant to Articles 92 (1) and 103 (1) of the ECJ’s Rules of Procedure.
In particular, a call for sharper attention is made to (new) national courts when drafting a reference for a preliminary ruling.
The ECJ first referred inter alia to the teaching of Telemarsicabruzzo and Centro Europa (Cases C-320/90 and C-380/05), stating that the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the referring court should define at the very least, explain the factual circumstances on which those questions are based.
The Court further stressed that it is important for the referring court to set out the precise reasons why it was unsure as to the interpretation of Community law and why it considered it necessary to refer questions to the ECJ for a preliminary ruling. It is essential that the national judges should give at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and of the link it establishes between those provisions and the national legislation applicable to the dispute. To this effect, the Order refers to its previous case law in ABNA Case C-453/03 and Asemfo C-295/05 as well as to its Information note on references from national courts for a preliminary ruling.
Therefore, the order for reference must be sufficiently complete and must contain all the relevant information not only to allow the ECJ to answer but also to permit the Member States’ governments and other parties entitled to submit their observations in accordance with article 20 ECJ’s Statute.
In the present case, the national court had only transmitted to the ECJ the file of the main proceedings and the question for the preliminary ruling without describing the factual and legal context nor explaining the reasons which prompted the national court to raise the question of the interpretation of the Community legislation. In addition, the Bulgarian Court had not given any explanation on the reasons why it identified the Community provision in question as relevant to the case nor on the relationship between this provision and the national legislation applicable to the main proceedings. In light of the above, the ECJ concluded that the reference for a preliminary ruling was manifestly inadmissible (paragraph 12 of the ECJ’s Order : available in French and Bulgarian language versions only).
Posted by: Edith Van den Eede @ 14.35
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