A recent high-profile marketing initiative by a Mexican pharmaceutical company appears to be a clear example of unfair competition. This article puts the campaign in context and looks at the likely outcome for the advertiser.
Norwegian law offers several means of enforcement against unfair and comparative advertising. This article analyzes the options available and provides an overview of recent amendments to the Marketing Control Act.
A boom in advertising over the past 10 years is reflected in the development of related legislation. However, there is limited case law from the courts in this field due to the significant enforcement powers of regulatory bodies.
Facebook is bringing in new privacy measures in response to criticism in Canada over its handling of personal data. The new approach looks likely to have an impact on mark owners' advertising strategies.
While a fully joined-up European advertising policy remains a dream, at least the Danish system has been updated to provide comprehensive coverage. Moreover, individuals have a strong ally against unfair advertising in the shape of the Consumer Ombudsman.
The sprawling legislative regime governing advertising, along with a fragmented administrative system, means that practitioners must stay on their toes when trying to determine whether an advertisement is permitted in Spain.
Brazil’s new fondness for comparative ads has highlighted ambiguities in the legal regime in this area. However, there is considerably more certainty over ambush marketing: the country’s selection as host of the 2014 World Cup and the 2016 Olympics have already prompted bills on the subject.
Advertisers must take into consideration provisions of the Consumer Code and Legislative Decree 145/2007 when devising a marketing campaign. Any breach of the rules could lead to the advertisement being suspended and a fine.
Is the online use of a third-party mark to link through to competitor products lawful? Case history in Israel to date shows an increasing leniency towards this activity - Oren Mandler and Kfir Luzzatto analyze the reasons why.
In a landmark decision, the High Court of Madras has attempted to tighten the rules on comparative advertising. However, the ruling may have opened the door to inconsistency in the interpretation of the law in this area.
The legislation on unfair and comparative advertising has its roots in the rules on unfair competition. The introduction of changes to the Advertising Code in 1998 clarified the law by implementing the EU Comparative Advertising Directive.
Often the best way to make a product stand out is to compare it to competing products on the market. However, while powerful, comparative advertising treads a fine legal line between good business and unfair competition.
The EU courts have wrestled with the likelihood of confusion test for pharmaceutical marks over the years, often coming to seemingly conflicting conclusions. The Romanian courts, on the other hand, have preferred to keep things simple and have taken a more consistent line.
Spanish practice on pharmaceutical trademarks reflects recent developments at EU level. This article examines the relationship between such marks and international non-proprietary names and the criteria for determining the relevant public.
Many trademark challenges are specific to the pharmaceutical industry. Issues include whether clinical trials can be considered trademark use in Canada – a prerequisite to trademark registration – and the limited extent to which pharmaceutical trademarks can be used in advertising.
Part IV of the new Civil Code establishes the basic regime for the protection of pharmaceutical trademarks in Russia. Rights holders must also be aware of legislation governing the use of medicines, and practice at the Patent and Trademark Office and the courts.
Substantive legislative changes have opened the door to the parallel importation of pharmaceuticals in Israel. Parallel importation cannot be prohibited, unless the goods undergo substantial changes such that they can no longer be attributed to the mark owner.
The conservative approach of the Patent and Trademark Office and the courts to the protection of non-traditional trademarks, as well as limited national case law on the issue, mean that much remains to be clarified with regard to the scope of protection of such signs.
The protection afforded to non-traditional trademarks in Benelux is governed in large part by EU regulations and case law. However, Benelux courts are often prepared to grant protection where the EU instances are not.
The Indian Intellectual Property Office is putting together a manual on trademark practice and procedure which provides thorough guidelines on the requirements to register non-traditional marks. This article examines the latest proposals in detail.
Even though the traditional view that trademarks can consist only of visual signs lingers in Romania, shapes, sounds and colour combinations may be registered as trademarks. Case law regarding other non-traditional marks, however, remains limited.
Non-traditional signs enjoy broad protection in the United States as long as they can function as trademarks. Nonetheless, proving acquired distinctiveness may be challenging for those signs, such as product designs, that lack inherent distinctiveness
Spanish trademark law and practice are bound by EU regulations and case law. However, the Spanish Patent and Trademark Office is even more reluctant than the EU trademark bodies to register unconventional marks.
Three-dimensional shapes can be protected under trademark, industrial design and/or copyright law in Canada. To obtain immediate and comprehensive rights, brand owners should consider an integrated strategy combining all three protection schemes.
Three-dimensional trademarks can be registered in China as long as they are distinctive and non-functional. However, trademark owners should be aware that similar shapes may already have been registered as patent designs.
The definition of ‘trademark’ in Mexican law is restricted to signs that can be perceived visually. In practice, the Trademark Office narrows this definition further – for instance, by not granting registration to colours unless they are combined with other distinctive elements.
In principle, any sign that is distinctive and can be represented graphically may be registered as a trademark in Denmark, but these requirements often prove to be insurmountable hurdles for non-traditional marks.
Before the entry into force of the Trademarks Act in 2001, trademark owners struggled to enforce their rights before the courts. Further amendments were introduced by Act 19/2006, which implemented the IP Rights Enforcement Directive.
Trademark owners seeking to enforce their rights in Norway should typically start civil proceedings. However, mark owners should also consider applying for customs surveillance and should make use of alternative resolution bodies for solving unfair competition and domain name disputes
The debate surrounding the conflict between trademarks and trade names is not new in Romania. However, case law is developing, with certain courts finding that a trade name which infringes an earlier registered mark must be amended
EU legislation provides a number of means by which IP rights may be enforced. In addition, various proposals and initiatives are pending in relation to criminal sanctions and the fight against counterfeiting and piracy.
Determining which court has jurisdiction over a particular dispute is crucial for IP rights owners. Russian law provides a number of criteria to answer this question, but uncertainty remains as to certain kinds of IP cases
Mark owners seeking a preliminary injunction must file their request with a local bailiff’s court while full infringement proceedings should be filed with the Maritime and Commercial Court – a specialized court.
Italian statutory law provides all the tools necessary for the effective enforcement of trademark rights. This is further enhanced by the existence of specialized IP sections within the courts. However, some peculiarities of the Italian system mean that the courts are swamped by cases challenging the validity of registered trademarks.
Enforcing trademark rights in Israel can be done through the usual channels of the courts, the police and Customs. Filing petitions before the registrar of trademarks, particularly in cases of conflicting applications, should also be considered.
Trademark owners have several means of enforcing their rights in Benelux. In addition, the scope and effectiveness of enforcement actions have increased since the implementation of the IP Rights Enforcement Directive.
Germany’s long tradition of trademark right enforcement ensures that brand owners are well protected. However, the recent implementation of the EU Unfair Commercial Practices Directive and the IP Rights Enforcement Directive introduced some small but noteworthy changes
The enforcement of IP rights in India remains inconsistent. While the Indian judiciary regularly displays remarkable flexibility with regard to protection, the enforcement of IP laws by law enforcement agencies leaves much to be desired
Trademark rights can be enforced in Canada on the basis of both registered and unregistered rights, under the federal statute and the common law tort of passing off. Remedies include interlocutory injunctive relief, but proving irreparable harm often presents a tremendous challenge.