CLASS 46
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TUESDAY, 28 DECEMBER 2010
Spain - Cointreau takes a sweet sip in Alicante.
Posted by: Ignacio Marques @ 11.04
Tags: Spain, enforcement.,
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Spain - Cointreau takes a sweet sip in Alicante.
The Judgment no. 3/2010 by the Spanish CTM Court no. 1 of Alicante (recently available) tackles as few others before the protection of marks "with a reputation" in the terms of article 9.1 c) of the CTM Regulation.
The claimants in that case were Cointreau and CLS Remy Cointreau, who brought an infringement action against a Spanish competitor that sold orange liquor under the brand "PORTHOS" in such a bottle that (according with the claim) mimicked the claimant's "trade dress" (labels, colours, shape of the bottle etc.).
After a detailed dissection of the marks as stake in view of the alleged infringing bottles, the Court ruled that there was no likehood of confusion. The dissimilarity of the word brands (COINTREAU vs. PORTHOS) was the key factor. The rest of similitudes referred -in His Honour's own words- "to secondary features".
However, Cointreau and CLS Remy Cointreau's claim was finally awarded. The Court found that, despite there was no likehood of confusion, the respondent was infringing the claimants' reputed marks under article 9.1 c) of the CTM Regulation. Following the doctrine established in L'Oreal vs. Bellure (Case C‑487/07), the Court ruled that the respondent's product generated "such a link in the mind of the public" with the claimants' marks, which resulted in taking "unfair advantage of the repute" (which is referred as "parasitism").
Consequently, the Court issued a permanent injunction, ordered the recall of the infringing bottles plus payment of damages and imposed Court costs to respondent.
Tags: Spain, enforcement.,
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