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.
As previously
mentioned on Class 46, one of the particularities of this film is that its casting and set exclusivly consist in logos. In 16 minutes, you will have seen about 3000 trade marks, which, I believe, is only a little bit more than the average product placement rate for a James Bond movie. Another thing the Class 46 readership might be curious about Logorama: the movie stars collaborated without their impresario's consent.
Nicolas Schmerkin (producer of the film) declared: "I have to thank the 3,000 non-official sponsors that appear in the film. And I have to
assure them that no logos were harmed in the making of the project."
The concept of Logorama is not unlike FoodFight!, another 3D CGI film with brand characters as heros, which has been in production mode for a while now.
MONDAY, 8 MARCH 2010 Poland: the reputation of a trade mark
The Polish Patent Office invalidated the right of protection for 3MA R-171362 trade mark owned by the Polish company MARMA Polskie Folie Sp. z o.o. The proceeding were initiated by the 3M Company, the owner of 3M R-84046 and word-figurative 3M R-84047 trade marks. The American company has claimed the reputation of its signs and argued that the registration of 3MA R-171362 trade mark would bring its owner unfair advantage and it would be detrimental to the distinctive character and the reputation of 3M’s trade marks. The complaint of MARMA Polskie Folie Sp. z o.o. company was rejected by the Voivodeship Administrative Court in Warsaw in a judgment of 9 October 2009, case file VI SA/Wa 233/09.
The VAC ruled that in the absence of a legal definition of the reputation it was the legal doctrine and the courts who have defined the essential criteria for determining the reputation of the trade mark. Accordingly, the reputation of the trade mark is associated with the established opinion among customers about the characteristics of the goods bearing the mark. The reputation is not a simple consequence of the use and circulation of a trade mark, but it’s also a well-established and deeply rooted image in the consciousness of buyers of vital goods. The reputation of a trade mark is a result of the care for the high quality of products, the consistent preservation of a sign on the market by long and intensive advertising. An established reputation of a trade mark occurs when the quality of the goods bearing the sign satisfy customers who can easily recognize it and connect with the goods marked by the proprietor, even if it means that the goods are placed on the market for the first time. The reputation of a trade mark means its attractive value of advertising, the positive perceptions of the goods bearing the sign. In assessing whether the sign is reputed, one cannot take into the account only the degree of knowledge of a sign among the customers and the extent and intensity of advertising of goods bearing the sign, but also the quality of these goods. Prizes and certificates awarded for the goods bearing the sign, expert opinions and presentation of the goods at trade fairs in order to promote products also show the reputation of the trade mark.
This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.
MONDAY, 8 MARCH 2010 What do the Netherlands Antilles and the Ukraine have in common?
The Netherlands Antilles and Ukraine have both signed up for the Singapore Treaty. In the case of the Netherlands Antilles this took effect from 10 January 2010 (for the Netherlands itself, being part of the Benelux, the Treaty will come into force on a later date). As for Ukraine, the Treaty takes effect from 24 May 2010.
SATURDAY, 6 MARCH 2010 Russia: Euroset in a battle for a free-ride
The application proceedings brought by Euroset (internet shop) were stayed by the Russian Arbitrage Court on 3 March due to the failure of the applicant to comply with some formalities. Euroset are attempting to apply against the refusal of ROSPatent to register a word mark HALYAVA ("халява") in Classes 18, 25, 32 and 33, which include leather products, clothing and beverages containing varying percentage of alcohol.
The actual word is a slang commonly used among young people and meaning "freebie" or "free ride". Getting something "na halyavu" (as a freebie) is seen as a great achievement by teenagers (mostly) because no effort was made and no money was paid to receive the benefit in question, be it a free cake at a canteen or a free cinema screening thanks to the inattentive ticket collector.
The ground for refusal was the negative meaning of the word and its contradiction to "the society's interests" as it promotes "satisfying one's needs on others' accounts". Euroset disputed this finding, saying that the word should be regarded as a "joke". Furthermore, they already own the mark in relation to products (such as fishing and publishing equipment) and services (such as insurance, telecommunication and scientific research).
Nevertheless, Euroset's arguments were rejected because of the immoral character of the word and its negative effects on the society as a whole. Interestingly enough, ROSPatent seems to consider it immoral to imply receiving drinks and shoes on another's account whilst advertising insurance and financial services under the same mark is acceptable.
SATURDAY, 6 MARCH 2010 Daimler gets a nastygram from Ferrari
In a commercial for its Smart car, Daimler shows a number of two-seater sport cars, among them a Lamborghini Gallardo, Porsche GT and a Ferrari Enzo. In the end, the Smart Four-Two is shown with the commentary: "Isn't it suprising that dream cars are always two-seaters?".
If the embedded video doesn't work, here is the link to Youtube.
Pretty harmless, you may think, but Ferrari - well known for aggressively enforcing its intellectual property rights - sent Daimler a letter demanding that Daimler stop showing the commercial. Daimler complied, noting that the campaign had ended anyway. And Marc Langenbrinck of Smart wrote to Ferrari announcing that he would produce another version of the commercial, replacing the Ferrari Enzo with a Mercedes SLS. In red. Yes, he really said that.
SATURDAY, 6 MARCH 2010 OHIM - latest updates to its Manual of Trade Mark Practice
Just before we all go home for the weekend, OHIM informed us of the latest changes in the Manual of Trade Mark Practice. In summary, the changes revolve around (a) the interruption of opposition proceedings in case of legal incapacity or decease of a party to the proceedings or its representative, and (b) the interpretation of the (rather long) notion of "real and effective industrial or commercial establishment" , with regard to international registrations.
FRIDAY, 5 MARCH 2010 Danes side with Benelux and the Hungarians on ONEL
A statement issued by the Danish Patent and Trademark Office a few minutes ago reads as follows:
"When assessing the functioning of the present European trademark system, one should look at the reasons why this system was created, and the considerations behind its establishment. The Council regulation on the Community trademark mentions that one of the purposes of the CTM is to promote throughout the Community a harmonious development of economic activities and a continuous and balanced expansion by completing an internal market which functions properly and offers conditions which are similar to those obtaining in a national market. This also shows that the EU Council has made a distinctly political decision that we should uphold two parallel trademark systems in Europe; one national and one regional access to trademark registration.
One could question of course to what extend a European trademark should be used and in how many countries such a use should be required. This is not an easy question to answer. However, it is the DKPTO’s point of view that use in a very limited part of the Community seems not to fulfill the purpose and the intentions of the European trademark regulation. On the other hand, it seems too restrictive to demand that the European trademark is used in all 27 member states. The answer must lie somewhere in the middle.
Furthermore, we should be aware that the rules and regulations must not create unfavorable market conditions, and they should certainly not lead to a distortion of competition. It is essential that a fine line is drawn between the grant of exclusive rights and the importance of having markets open to competition – on this point the DPKTO shares the view of the Benelux and Hungary.
Another aspect which could be mentioned in this context is that we see a tendency towards an increase in the number of registered trademarks, and it should of course be examined whether and if this poses a problem for the continued functioning of the European trademark system.
The DKPTO is therefore pleased that an extensive study conducted by the Max Planck Institute is in progress, and at this point we believe new initiatives should await the results of this scrutiny".
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