Chocoladefabriken Lindt & Sprüngli AG v OHIM (T-336/08, T-337/08, T-346/08 and T-395/08); August Storck KG v OHIM (T-13/09)
The General Court of the European Union upheld OHIM’s decision not to register the shapes of a chocolate rabbit, reindeer, bell or block featuring a mouse as Community trade marks on the basis that these signs are devoid of distinctive character.
Full the full texts of the following cases: Chocoladefabriken Lindt & Sprüngli AG v OHIM, CasesT-336/08, T-337/08, T-346/08 and T-395/08; August Storck KG v OHIM Case T-13/09 (French-language versions).
L’Oreal SA and others v eBay ([2009)] EWHC 1094 (C-324/09)
The Advocate General has delivered his opinion on questions referred to the ECJ by the High Court in L’Oreal v eBay. The questions concerned: (1) the liability of marketplace website operators (such as eBay) for the offer/sale of cosmetic samples, unboxed branded products, and non-EEA-sourced branded product on their websites; (2) the use of third party trade marks in sponsored links and offers for sale; (3) the applicability of the exemptions in the E-Commerce Directive to marketplace website operators; and (4) the scope of national courts for issuing injunctions against website operators such as eBay.
If the ECJ follows the Advocate General’s opinion the outcome would be welcomed by the operators of online marketplace websites as it recommends that such operators should not generally be liable for trade mark infringements committed by users of their websites. The Advocate General also recommended that such operators should be able to monitor content that is posted on their sites, and offer guidance without exposing the operator to potential liability for infringing content that they are unknowingly hosting.
For our full Law-Now on this decision, click here.
For the full text of the decision, click here.
Cowshed Products Limited v (1) Island Origins Limited, (2) Patrick O’Conner and (3) Bianca O’Conner, High Court
HHJ Birss, sitting in the High Court, has refused to order an interim injunction in favour of Cowshed Products, owners of a range of trade marks consisting of and including the word COW for beauty products, to restrain the activities of Cowshed’s former web designers, who were launching a range of beauty products under the name “The Jersey Cow Company”. The judge held that although both sides were at risk of suffering unquantifiable damage if the decision went against them, the effects of such damage on the claimant would be small, whilst the effect on the defendant would probably be to put them out of business. He therefore ordered a speedy trial in preference to an interim injunction.
For the full text of the decision, click here.
Longevity Health Products Inc. v OHIM, General Court, Case T-363/09
Registration of the trade mark RESVEROL for pharmaceutical products was prevented by the owner of the existing mark LESTEROL which was registered for a subset of pharmaceutical products. Bearing in mind the “average” degree of similarity between the marks and the identical nature of the goods there was a likelihood of confusion.
For the full text of the decision, click here.
Novartis AG v OHIM, General Court, Case T-331/09
Novartis failed in its opposition to an application for TOLPOSAN based on its earlier registered mark TONOPAN. While there was average similarity between the signs, there was only slight similarity between the goods, despite both being medicines in Class 5.
For the full text of the decision, click here.
ICB forced to change the name of Vodkat
Following a long-running legal battle between Diageo and Intercontinental Brands (“ICB”), ICB have agreed to change the name of its vodka-based alcoholic drink, Vodkat. ICB will also pay Diageo an undisclosed but substantial sum in damages and legal costs.
The name change, as part of a settlement agreement reached last month, follows a decision by the Court of Appeal, upholding the High Court’s judgment that Vodkat was being unlawfully passed off as vodka. The Court found that there was goodwill in the term ‘vodka’ meaning that vodka now joins the list of products (including champagne and Advocaat) which enjoy protection under the extended form of passing off.
For our full Law-Now on this development, click here.
The full judgment in the High Court and Court of Appeal decisions can be found here and here respectively.
