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20 October 2010

Insufficient factual basis for fraud where registrant sought advice of counsel

In MCI Foods Inc v Bunte, in a precedential decision, the TTAB has declined to find fraud on the USPTO based on an overly expansive goods description absent a more detailed factual record of the applicant’s communications with its trademark counsel. However, the TTAB cautioned that this finding does not mean that the mere assertion that one acted on 'advice of counsel' will make out a successful defence to a charge of fraud.

20 October 2010

Soft drink giant awarded moral damages for unauthorised parallel imports

The Piraeus Court of First Instance has granted The Coca-Cola Company's request for a permanent injunction against a parallel importer of Coca-Cola cans. The court also awarded moral damages to Coca-Cola, even though the products had not entered the Greek market, thus recognising that the attempt to commercialise unauthorised imports is, in itself, sufficient to harm the interests of the trademark owner.

19 October 2010

Shoe device held to be unregistrable for footwear

The registrar of trademarks has refused to register a device mark for footwear, finding, among other things, that the device showed merely that air can pass through the sole, and hence designated the characteristics of the goods applied for. Therefore, the application failed under Section 11(1)(c) of the Trademarks Ordinance.

14 October 2010

Advertising company successfully enforces mark, despite it being descriptive

A court has ordered an advertising company to refrain from using the trademark PUBLICIDAD ALTERNATIVA, which is owned by Publicidad Alternativa 2025 CA, a company offering non-traditional advertising options. The defendant was offering non-traditional advertising services under the mark and had incorporated a company under the name Publicidad Alternativa CA.

14 October 2010

Grant of summary judgment reversed in tank top tussle

In Fortune Dynamic Inc v Victoria’s Secret Stores Brand Management Inc, the US Court of Appeals for the Ninth Circuit Court has reversed a grant of summary judgment, but acknowledged that it was “far from certain that consumers were likely to be confused” by the defendant’s use of the word 'delicious'. The decision was largely based on the well-established principle that summary judgment is generally disfavoured in trademark cases.

13 October 2010

Trademark for rum held to be deceptively misdescriptive

In Ron Matusalem & Matusa of Florida Inc v Havana Club Holding Inc SA, the Federal Court has found that the additional evidence filed on appeal did not justify overruling the decision of the Trademark Opposition Board. The court further held that the mark THE SPIRIT OF CUBA, when viewed in its entirety, was deceptively misdescriptive of the place of origin of the goods and, therefore, was not distinctive when used in association with rum.

12 October 2010

Guitar headstock held to lack distinctive character

In Wilfer v OHIM, the General Court has upheld a decision of the Fourth Board of Appeal of OHIM in which the latter had found that a trademark consisting of a guitar headstock lacked distinctiveness. Among other things, the court held that the mark did not contain any feature that was likely to be perceived as an indication of the commercial origin of the goods.

11 October 2010

Hotel name held not to be a mark established through use

In The Gripsholm Inn AB v The Swedish Red Cross, the Svea Court of Appeal has held that the Swedish Red Cross had not infringed the trademark or business name of Gripsholm Inn AB due to its use of the mark GRIPSHOLMSVIKEN HOTEL & CONFERENCE. The court concluded that the name Gripsholms was not a mark that had been established through use with regard to the services provided by the Gripsholm Inn.

08 October 2010

Weak element of complex mark may be dominant

In Travel Service as v OHIM, the General Court has held that there was a likelihood of confusion between the marks SMARTWINGS and EUROWINGS for aviation-related activities. Among other things, the court stated that the possibly weak distinctive character of an element of a complex mark does not necessarily imply that that element cannot constitute a dominant element.

08 October 2010

Church’s mark valid - even though religions cannot be trademarked

In General Conference Corporation of Seventh-Day Adventists v McGill, addressing the issue of whether a church can claim trademark protection, the US Court of Appeals for the Sixth Circuit has affirmed the denial of a pastor’s motion to dismiss and affirmed a partial summary judgment in favour of the plaintiff that the pastor’s use of the mark SEVENTH-DAY ADVENTIST created a likelihood of confusion.

05 October 2010

'Ice' marks held to be confusingly similar in controversial decision

In Icebreaker Ltd v OHIM, the General Court has held that there was a likelihood of confusion between the marks ICEBREAKER and ICEBERG among the Italian public. Although the court carried out a detailed analysis of the conceptual similarities between the marks, it based its decision only on a "considerable" visual similarity, combined with the identity of the goods and the distinctiveness of the earlier mark.

13 September 2010

New criteria for admissibility of motions for reconsideration established

In opposition proceedings involving the marks AJI-NO-BELL’S and AJI-NO-MOTO, the IP Chamber of the Administrative Court of INDECOPI has determined new criteria for the admissibility of motions for reconsideration. The court found that the Trademark Office had erred in qualifying the opponent's challenge as a motion for reconsideration.

10 September 2010

First court of appeal decision on eBay's liability issued

In Hermès International v eBay France, the Court of Appeal of Reims has held that eBay could not be considered as a hosting services provider and, therefore, was liable for the sale of infringing products on its auction platform. This is the first time that a French appellate court has issued a decision on eBay’s liability.

09 September 2010

Forbes finally obtains 'forbes.ru'

US business magazine Forbes has finally obtained ownership of the domain name 'forbes.ru', seven months after winning a domain name infringement case against a Russian cybersquatter. Following an appeal against the decision, the parties have now reached a private agreement.

07 September 2010

Ninth Circuit unanimously reverses injunction in dispute over Bratz brand

In Mattel Inc v MGA Entertainment Inc, in the long-running dispute between toy makers Mattel Inc and MGA Entertainment Inc over the Bratz dolls, MGA has won an important legal battle - even though the war is far from over. In a unanimous ruling, the US Court of Appeals for the Ninth Circuit reversed a district court decision in which the latter had placed the BRATZ marks in a constructive trust.