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On Wednesday the ECJ issued its much-awaited decision in Société des Produits Nestlé SA v Cadbury UK Ltd, with most media reports arguing that the decision deals a final blow to Nestlé’s attempt to protect the ‘four-finger’ shape of its Kit Kat bar as a trademark in the UK. However, the reality is more nuanced, with the company itself stating that it was “very pleased” with the decision.
In a decision that will be welcomed by brand owners struggling to find the source of counterfeit products, the ECJ has ruled that Article 8(3)(e) of the IP Rights Enforcement Directive precluded a national rule that allowed banks to invoke banking secrecy unconditionally to reject requests for information. However, as one commentator observes, this does not mean that rights holders’ interests trump data protection or banking secrecy laws per se.
The decision of the ECJ in Karen Millen Fashions Ltd v Dunnes Stores (Case C-345/13), issued this morning, will provide a boost for businesses in creative industries. The ECJ endorsed Advocate General Wathelet’s designer-friendly opinion on the test for protection of an unregistered design and the burden of proof in establishing infringement.
The decision of the ECJ in Blomqvist v Rolex SA (Case C-98/13), issued this morning, could significantly enhance the rights of trademark owners to seize goods. However, its true impact will only become apparent when national courts apply the theory to the facts.
In a decision that will be welcomed by brand owners, the ECJ has held that colour is relevant to the global assessment of the likelihood of confusion and unfair advantage.
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