Diluting the evidence required to show unfair advantage and detriment?

The Court of Appeal for England and Wales has asked the ECJwhether it is sufficient, for a finding of a link and/or unfairadvantage and/or detriment, that the earlier mark is uniqueand famous and calls to mind the later mark on dissimilar goods.     

Dishonestly and without due cause

Legal context: UK trade mark law was harmonised with the laws of other EU memberstates pursuant to the Trade Marks Directive (89/104/EEC) withthe coming into force of the Trade Marks Act 1994. Since then,the English courts have sought to absorb into English jurisprudencecontinental concepts of unfair competition, and a new code relatingto the use of another's trade mark in comparative advertising.Traditionally, the English approach has been more liberal andless protective of a trade mark owner's rights than that ofcontinental jurisdictions, but since 1994 the ECJ has been calledupon to provide frequent guidance on the interpretation of expressionssuch as the "essential function" of a trade mark and the "dutyto act fairly" in relation to the legitimate interests of thetrade mark proprietor. Key points: This article examines the way in which some recent decisionsof the ECJ have led to the English courts having greater regardto the property interests of the trade mark owner and less regardto the concepts of free market competition and consumer protection.In the recent High Court case of L'Oréal and others vBellure NV and others, Lewison J made findings of infringementunder s.10(1) and (3) Trade Marks Act 1994 where he found thatthere was "free riding" on the back of the reputation of certainof L'Oreal's trade marks without there being any evidence ofconfusion or association between the trade marks and the defendants'signs. Practical significance: For trade mark owners, this change in the approach of the Englishcourts opens up new opportunities to combat look-alike productsand comparative advertisements which take unfair advantage ofthe reputation of established marks.     

Keywords,case law and the Court of Justice: the need for legislative intervention in modernising European trade mark law

Recent preliminary references to the CJEU on online keyword advertising and registered trade mark infringement have exposed the challenges facing EU registered trade mark law in its response to new technologies. These cases and the challenges they pose provide a timely prism through which to examine the European trade mark law-making process and the role of the CJEU within that process. This article will employ an analysis of the way in which the CJEU has developed certain key new aspects of the law on ‘infringing use’ to explore concerns over the CJEU's role and approach. It will be argued that, driven by policy considerations, the CJEU has acted creatively to develop the law of infringement in ways that cannot be sustained by the TMD and CTMR and which are likely to cause increasing uncertainties going forward. With the European Commission currently considering reform of Trade Marks Directive 2008/95/EC and Community Trade Mark Regulation 207/2009/EC, this paper will argue that there is a need for more comprehensive and forward-looking legislative intervention than has yet been proposed and that such intervention will be essential to restoring balance in the European trade mark law-making process.     

Advocate General says comparative advertising is not a matter of trade mark law

According to Advocate General Mengozzi, trade mark infringementis not relevant in assessing the legality of a third party'suse of an identical trade mark or similar sign in comparativeadvertising, but such advertising is governed exhaustively byArticle 3a of the Misleading Advertising Directive (84/450),as amended by the Comparative Advertising Directive (97/55)(‘CAD’).     

Quantitative assessment of evidential weight for a fingerprint comparison I. Generalisation to the comparison of a mark with set of ten prints from a suspect

The authors have published elsewhere a quantitative method for assessing weight of evidence in the case where a finger mark from a crime scene is compared with a control print taken from a single finger of a suspect. The approach is based on the notion of calculating a likelihood ratio (LR) that addresses a pair of propositions relating to the single finger that was the origin of the crime mark. In practice, things are rather different because the crime mark will not just be compared with a single finger from a suspect but with a set of prints from all of his/her fingers; likewise, when the mark is compared with a database, this will consist of ten print records from random individuals. It is clear that "finger propositions" are not realistic in this situation and we show how our approach may be generalised to address a pair of propositions that relate to the person that made the crime mark. It often is the case that information is present at the crime scene that enables some inference to be drawn relating to which of the offender's ten fingers left a particular mark of interest. This kind of inference may profitably be drawn into the formal analysis. We illustrate our approach with an example.     

Cancellation of a trade mark based on a prior foreign geographical indication related to different products

The registration and the use of a composite trade mark includinga famous geographical indication (GI), for products differentto those covered by the GI, are acts of unfair competition insofaras they allow the trade mark owner to free-ride on the GI'sreputation, causing its dilution.     

Significant 2007 case law on the Community trade mark from the ECJ and the CFI

Legal context: This article looks at the important decisions of 2007 on theCommunity trade mark made by the Luxembourg courts. Key points: The cases discussed concern the application of Council Regulation(EC) No. 40/94 of 20 December 1993 on the Community trade mark(the ‘CTMR’), Commission Regulation (EC) No. 2868/95of 13 December 1995 implementing the CTMR (the ‘CTMIR’),and the Council Directive 89/104/EEC of 21 December 1988 (‘Directive89/104’). Practical significance: The purpose of this article is to give a quick overview of themost significant trade mark cases decided in 2007 by the Luxembourgcourts. The article has a practical bias and is aimed at readerswho wish to find quickly the key decisions of 2007.     

味觉商标的可注册性分析——以美国“欧加农案”为视角

20世纪90年代后期,随着经济的发展和技术的进步,商家越来越多地使用非传统商标作为营销手段以获取竞争上的优势。一般而言,非传统商标包括立体商标、颜色商标、声音商标、气味商标、动态商标、触觉商标、味觉商标等等。本文试图结合欧加农案对味觉商标的可注册性进行分析,其中包括对于味觉商标的显著性、味觉商标功能性以及味觉商标注册存在的主要问题的探讨,以期能为我国《商标法》第三次修改提供一些参考。     

Intellectual Property High Court of Japan denies registration of trade mark for market leading multi-million dollar beer product on non-distinctive grounds

The Intellectual Property High Court of Japan's (IPHCJ) recent Honnama trade mark decisionillustrates the difficulties of registering an inherently non-distinctivemark and the perils of relying on secondary meaning evidenceof use that is not identical with the mark in the trade markapplication.     

Demonstrating 'use' of an earlier registered mark in CTM opposition proceedings

An earlier registered trade mark may serve to oppose a laterapplication to register a Community trade mark, notwithstandingthat the earlier mark is not used in the form in which it isregistered, so long as the actual use had not destroyed thedistinctive character of the earlier mark.     

Comparative advertising and trade mark infringement: some guidance from the Netherlands

A recent decision of one of the five Dutch Appeal Courts hasclarified the relationship between trade mark law and advertisinglaw, holding that a trade mark owner cannot successfully accumulatetrade mark and advertising claims: where publicity complieswith the standards of advertising law, such use cannot thusamount to trade mark infringement.     

Transillumination in bite mark evidence

Transillumination of bite mark evidence is a technique whereby the presence of subcutaneous hemorrhage can be visualized without having to section through the bite mark. This is a nondestructive technique. The presence of subcutaneous hemorrhage indicates that the bite mark was inflicted before death or perimortem. In addition, the technique proves invaluable in determining the orientation of the bite mark. This is particularly helpful when a bite mark is poorly defined, barely visible, or obscured by other superimposed bite marks or traumatic injury patterns. Observation of the subcutaneous hemorrhage by transillumination may provide an indication of the horizontal alignment of the aggressor's dentition since the force of occlusion used in delivery of the bite mark is a factor in the presence and intensity of the hemorrhage. Transillumination supports a conclusion that there may be two types of hemorrhagic patterns in bite mark evidence. Lastly, when transillumination is used in conjunction with visual aids, it can facilitate communication of bite mark evidence to other expert witnesses or to the jury in trial presentation or both.     

将他人驰名商标恶意登记为企业字号的行为是否构成侵权——评星源公司等诉上海星巴克等商标侵权及不正当竞争纠纷案

原告星源公司是一家在美国注册成立,在美国及世界范围内从事咖啡零售业务的公司。原告统一星巴克系中外合作企业，经工商行政管理机关核准，于2000年3月2日成立。“STARBUCKS”文字标识于1985年11月26日在美国进行了商标注册。     

声誉商标问题研究——兼评欧盟法院第C-252/07号初步裁定

因特尔公司是在英国注册的国内文字商标“INTEL”的持有者,认为英国CPM有限责任公司在英国注册的“INTELMARK”国内文字商标的使用将不公平地利用在先商标的显著性、声誉或者对该显著性或声誉产生有害的影响,亦或可能达到这样的程度.因特尔公司请求英国注册商标局宣告“INTELMARK”商标无效.欧盟法院做出初步裁定,认定“INTELMARK”商标的使用不足以构成对“INTEL”损害.     

To a hammer, everything looks like a nail

Legal context: Trade mark oppositions are routinely filed by brand owners againstan offending application or registration in either a pre-grantor a post-grant procedure before the respective national trademark office, but in Japan, there are several nuanced trade markopposition practice differences that should not be taken forgranted. Key issues: In light of persisting and recent abysmal trade mark opponentsuccess rates, favourable trade mark invalidation appeal (IA)data, and the inherent procedural handicaps against opponentsin Japan's current trade mark opposition system, Trade markowners would be better served by using Japan's trade mark IAprocedures to police against conflicting trade marks in Japanand not mechanistically file oppositions in Japan as one couldin other important trade mark jurisdictions like the USA orEurope. Practical significance: Japan's trade mark opposition and IA procedures offer complementaryoptions to police against conflicting trade marks so choosingthe right procedure is critical to its achieving the mission'ssuccess in curbing competitors' marks in the world's secondlargest free market economy.     

Photographic evidence protocol: the use of digital imaging methods to rectify angular distortion and create life size reproductions of bite mark evidence

Bite mark evidence seen in skin injuries or objects is commonly photographed for evidentiary documentation, preservation, and analysis. Distortion in forensic evidence photographs diminishes the outcome of analytical procedures available to the forensic odontologist. Inaccurate positioning of the evidence, camera, or measurement reference scale creates perspective and parallax distortion of the captured image. These variables must be eliminated, if possible, to ensure reliable results derived from comparison of the suspect teeth and the bite mark. Detection and measurement of camera/evidence/scale misalignment is the threshold step in evidence evaluation, and is possible through digital imaging methods coupled with established methods. Correction (rectification) of perspective distortion is possible through the application of additional digital editing techniques. This study establishes type categories of perspective and parallax distortion seen in bite mark evidence, validates the use of the digital imaging tools of Adobe Photoshop to correct certain types of distortion, and establishes a forensic protocol to verify the accuracy of evidence photographs requiring dimensional accuracy.     

Not all bite marks are associated with abuse, sexual activities, or homicides: a case study of a self-inflicted bite mark

A case of self-inflicted bite mark during an episode of myocardial ischemia is presented. Using current bite mark identification techniques, the bite mark was shown to be self-inflicted. Self-biting may be an emotional response to pain or a type of counterirritation to alleviate pain. The recognition and documentation of this unusual case of a self-inflicted bite mark was due to the cooperation of the forensic pathologist and forensic odontologist.     

2005式9mm警用转轮手枪射击弹壳痕迹研究

目的 研究2005式9mm警用转轮手枪射击弹壳痕迹,为警用转轮手枪射击弹壳痕迹检验鉴定提供理论依据.方法 预实验中选取10把警用转轮手枪以单动、联动方式分别射击收取弹壳样本,观察识别射击弹壳上各个痕迹的位置、形态及相互关系;补充验证实验中选取其中5把警用转轮手枪以单动方式分别进行射击实验,完善、验证预实验中得出的结论.结果警用转轮手枪射击弹壳上的烟垢痕迹、弹底窝痕迹及击针头痕迹的分布位置、形态具有规律性,具备检验鉴定价值.结论 利用弹底窝痕迹、烟垢痕迹结合击针头痕迹,可以实现射击弹壳的准确定位;利用烟垢痕迹、弹底窝痕迹及击针头痕迹具有推定弹壳先后射击顺序的可能性;通过弹底窝痕迹、击针头痕迹的细节特征比对,可以实现射击枪支的同一认定.     

Registration of terms borrowed from another language

In answer to a question referred by a Spanish Court in a disputeas to the validity of the Spanish trade mark MATRATZEN, theEuropean Court of Justice (ECJ) has ruled that trade mark ownersare not precluded by Article 3(1)(b) or (c) of the Trade MarksDirective (Council Directive 89/104) from registering in oneMember State a term borrowed from another language, unless itcan be demonstrated that relevant public in the Member Statein which registration is sought are capable of identifying themeaning of the term.