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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.
Source: article in The Guardian.
Posted by: Jeremy Phillips @ 19.05
Tags: ISP liability, |
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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.
Full text of the judgment (German) here (not final - an appeal to the Federal Supreme Court is still possible).
Posted by: Mark Schweizer @ 08.24
Tags: Switzerland, protected geographic indication, pgi, pdo, |
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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.
Posted by: Jeremy Phillips @ 20.30
Tags: PGIs, |
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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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