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Now in its twelfth 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.

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Anthonia Ghalamkarizadeh
Birgit Clark
Blog Administrator
Christian Tenkhoff
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Gino Van Roeyen
Markku Tuominen
Niamh Hall
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Stefan Schröter
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CJEU affirms objective nature of earlier Intel ruling
In Case C‑383/12 P Environmental Manufacturing LLP v Office for Harmonisation in the Internal Market, Société Elmar Wolf, the Court of Justice of the European Union (CJEU) took the opportunity yesterday to affirm that it meant exactly what it said in Case C-252/07 Intel Corporation Inc. v CPM United Kingdom Ltd. Said the court, at paragraphs 37 to 38:
"37 The concept of ‘change in the economic behaviour of the average consumer’ lays down an objective condition. That change cannot be deduced solely from subjective elements such as consumers’ perceptions. The mere fact that consumers note the presence of a new sign similar to an earlier sign is not sufficient of itself to establish the existence of a detriment or a risk of detriment to the distinctive character of the earlier mark within the meaning of Article 8(5) of Regulation No 207/2009, in as much as that similarity does not cause any confusion in their minds.

38 The General Court ...dismissed the assessment of the condition laid down by the Intel Corporation judgment, and, consequently, erred in law".
For an explanation of the facts and a peep at the parties' respective marks and signs, take a look at Laetitia's excellent post on the errant decision of the General Court, here.

This blogger's attention has been directed to an analysis of this very point, in relation to the same two cases, in an article by Colin Davies, "To buy or not to buy: the use of a trade mark as a communication tool, rather than as a link between a product and its source - a further consideration of the concept of dilution" in [2013] EIPR Vol 35 Issue 7, p 373. 
Posted by: Blog Administrator @ 12.10
Tags: Dilution, economic behaviour, CJEU,
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