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30 June 2005

Greek Competition Commission's questions go unanswered

Pharmaceutical companies that were hoping that their ability to restrict parallel trade in the European Union would be clarified by the ECJ have been disappointed by the court's refusal to consider questions on this issue referred by the Greek Competition Commission. The ECJ held that it did not have jurisdiction as the Greek commission does not meet the criteria for reference under the EC Treaty.

22 June 2005

Protection for non-traditional trademarks in Asia

Three-dimensional, sound, texture, taste and smell marks can - as with more conventional signs such as words and logos - identify products or services as being from a particular undertaking. Ted Chwu of Bird & Bird in Hong Kong and Beijing reports that the acceptance of non-traditional trademarks has increased in many Asian jurisdictions in recent years as a result of legislative changes.

08 June 2005

Personal names as domain names: confusion reigns

A number of recent decisions have highlighted the fact that disputes involving personal names registered as domain names may be resolved differently according to whether (i) they are decided in accordance with the Uniform Domain Name Dispute Resolution Policy, or (ii) formal litigation proceedings are brought before national courts. David Taylor and Jane Seager of Lovells in Paris examine some of these decisions and consider what conclusions may be drawn from them.

25 May 2005

Genuine trademark use in the European Union

Far from being a settled debate, what constitutes trademark use - in particular in the context of revocation proceedings for non-use - is still very much a disputed notion under EU law. Leighton Cassidy of Field Fisher Waterhouse in London examines selected case law and some practical considerations relating to genuine use of trademarks in the European Union, with particular reference to the Community Trademark Directive.

04 May 2005

Are image rights protected in Europe?

At the margin of trademark law, image rights enable individuals to control the use of their name, voice or picture. Against the backdrop of protection afforded in some other European countries, Jacqueline Irvine of Bird & Bird in London looks at these rights in the United Kingdom, in particular in relation to unauthorized use of personalities' images to endorse products and services.

20 April 2005

Unhappy bedfellows? The relationship between passing off and registered trademarks

In common law countries the protection afforded to trademarks by the tort of passing off is usually welcomed as an additional weapon in the registered owner's arsenal. Among other things, passing off extends protection to aspects, such as get-up and feel, that registered trademark protection often cannot reach. However, Alistair Payne and John Cahir of Matheson Ormsby Prentice in Dublin report that recent experience and case law suggest that passing off does not always complement registered trademark protection - instead the potential for conflict is ever greater.

06 April 2005

The impetus behind law modernization: the Canadian example

The Canadian Intellectual Property Office has requested comments from the public relating to the proposed modernization of the Canadian Trademarks Act, which has remained essentially intact since its implementation over half a century ago. Jennifer McKay of Gowling Lafleur Henderson LLP in Ottawa examines the proposed changes and the reasons behind them - from the possibility of acceding to international treaties to the necessity to put an end to some contradictions within the existing act.

23 March 2005

Asian laws find common ground

Asian countries have been particularly prolific in the past few years with the introduction of new (or amended) trademark legislation. China, Hong Kong and India have all adopted an array of trademark laws and regulations that will see mark owners in these countries enjoy broader rights and simplified procedures. Singapore was the latest to amend its trademark legislation by implementing last July an act that shares many features with its neighbours' new laws. Ai-Leen Lim and Angeline Lee of Colin Ng & Partners in Hong Kong discuss some of these statutes' common features.

09 March 2005

Unconventional marks in Europe since SIECKMANN, LIBERTEL and SHIELD MARK

Between December 2002 and November 2003, the European Court of Justice issued three ground-breaking decisions on the registrability of unconventional trademarks. Mark Holah of Field Fisher Waterhouse in London explains how SIECKMANN, LIBERTEL and SHIELD MARK have narrowed the boundaries of trademark protection in the European Union by making it a lot more difficult to register smells, colours and sounds. He also considers further decisions that have since helped to draw a clearer picture of what can and cannot be registered.

23 February 2005

Because they're worth it: the protection of slogans

A good slogan is a concise and striking phrase that aims to summarize the quality of a product or service. As with memorable trademarks, good slogans can be significant elements of identification. This makes them very valuable and thus vulnerable to abuse. Audrey Yayon-Dauvet and Isabelle Leroux at Bird & Bird in Paris look at the French example, which provides protection for slogans under trademark, copyright and unfair competition law, to see how slogans can be safeguarded against fraudulent use.

02 February 2005

Community trademarks and designs: a confluence of protection

IP law has evolved from recognizing a single monopoly right (the patent) to distinguishing between patents, copyright, trademark and design. The idea of divergent IP rights for different types of creation is still valid, but it has been eroded by the fact that, as each type of IP right expands, it overlaps more with other rights. As a result, the same shape, product or design can be protected by two or even three different rights. The overlap of Community trademarks and Community design rights is a case in point.

19 January 2005

Fair-use defence: the end of confusion?

The US Supreme Court has at last clarified some of the most disputed points relative to the fair-use defence, under which traders may use descriptive terms that are part of another party's mark to describe their goods or their geographical origin. Mark I Feldman of DLA Piper Rudnick Gray Cary explains how the court reached the conclusion that (i) a party can defeat an infringement claim on the basis of fair use, even if such use will result in some consumer confusion, and (ii) such a party is not required to prove that consumer confusion is unlikely.

08 December 2004

Can trademark law help tighten the Net on phishing?

Phishing is one of the biggest spam problems on the Internet and figures suggest that it is on the increase. While phishing is a fraud and therefore a criminal offence, fundamentally it is also an infringement of basic IP rights, particularly trademark rights. Darren Olivier of Field Fisher Waterhouse explains that brand owners ought to be aware that trademark law, is - at least in principle - capable of providing an additional layer of protection.

24 November 2004

Setting standards for Europe: the OHIM 10 years on

The OHIM has seen many developments since it came into existence on September 9 1994. It has had to adapt its practice following the increasing volume of case law issued by the CFI and the ECJ, and is making every effort to streamline its procedures by launching, for instance, a number of services online. Niamh Hall of FR Kelly in Dublin looks at the OHIM's achievements of the past 10 years as well as the issues and challenges it faces today and should prepare for in the future.

10 November 2004

Brand extensions - stretching a point?

A brand - a trademark combined with the emotional dimension that the public attach to it - can have substantial value, but this takes considerable time, effort and money to build. Therefore, extending a brand to ventures beyond its original sphere makes a lot of business sense. However, Chris McLeod of Hammonds in London reminds us through various examples that brand extension has its pitfalls. Failure to extend successfully is the lesser risk: the real danger lies in the potential damage to the core business.