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15 January 2007

ELIZABETH EMANUEL mark not deceptive

The decision of the appointed person in Emanuel v Continental Shelf 128 Ltd seems finally to have brought to a close one of the most commercially significant trademark cases of recent years. The result comes as a relief to all businesses trading under the name of a founding individual and confirms that Sections 3(1)(g) and 12(2)(b) of the First Trademark Directive do not undermine the assignability of such a brand.

15 December 2006

Comparative advertising questions referred to ECJ

In the latest episode of a long-running dispute between telecoms giants O2 and Hutchison 3G Limited, the Court of Appeal has referred three questions about comparative advertising to the ECJ. Among other things, the court asked for guidance on whether use of a registered trademark in comparative advertising ever infringes where the essential function of the mark, to indicate origin, is not compromised.

21 November 2006

New design rules implemented

The Regulatory Reform (Registered Designs) Order 2006/1974, which updates the Registered Designs Act 1949, and the Registered Designs Rules 2006/1975, which provide a substantial re-write of the Registered Designs Rules, came into force on October 1 2006. The amendments are designed to create a system that is as accessible, cost effective and simple to use as the Community design system.

21 September 2006

Intel's INTELMARK cancellation claim does not compute

In Intel Corporation Inc v CPM United Kingdom Ltd, the High Court of England and Wales has provided clarification with regard to the evidentiary requirements needed to prevail in an invalidity action based on a claim of unfair advantage or detriment to the distinctive character or repute of a trademark. In so doing, the court dismissed Intel's application for a declaration of invalidity against an INTELMARK trademark.

20 September 2006

Validity of FCUK confirmed

French Connection's FCUK mark has survived an application that it be declared invalid on the grounds that it is contrary to public policy or accepted principles of morality under Section 3(3)(a) of the Trademarks Act 1994. On appeal, the appointed person upheld the examiner's opinion that while the actual expletive would be prohibited from registration, FCUK was not in itself offensive.

15 September 2006

Microsoft licensing not anti-competitive, rules UK court

A High Court judge has granted Microsoft's request for summary judgment in a case of copyright and trademark infringement. The case demonstrates that although Microsoft is currently in bad odour with the European Commission for its anti-competitive conduct, competition law cannot always be relied on by those opposing the IT giant.

07 September 2006

End of relative grounds examination confirmed

Following a public consultation, the UK Patent Office has proposed to surrender part of its gatekeeper role and drop its relative grounds examination. Instead, the office will use its prior rights search procedure to alert applicants and owners of earlier marks to potential conflicts. The change would bring UK practice into line with the approach of the Office for Harmonization in the Internal Market.

06 September 2006

Nestlé gets to HAVE A BREAK at last

Following a protracted application process spanning over a decade and which included a referral to the ECJ, the UK Trademarks Registry has finally registered Nestlé's HAVE A BREAK mark for goods in Class 30 of the Nice Classification. The registry took into consideration the ECJ's reasoning that there is no general bar upon a mark acquiring a distinctive character as a result of its use as part of another trademark.

24 July 2006

New Practice Amendment Notices issued

The Trademarks Registry has issued a number of Practice Amendment Notices which, while making only relatively minor changes for the most part, do serve to clarify a number of issues relating to colour marks, offensive marks, names of the Royal Family, vague specifications and, most significantly, evidence of distinctiveness through use - the latter amending the registry's guidelines in light of the recent HAVE A BREAK Case.

21 July 2006

Practice notice on registrability of non-English words issued

Following the recent ECJ decision in Matratzen Concord AG v Hukla Germany AG, the UK Patent Office has released a Practice Amendment Notice (PAN 12/06) on the registrability of non-English words. The notice seeks to provide guidelines on how the registrar is likely to respond to certain applications to register non-English words as trademarks.

20 July 2006

Henkel pays penalty in shoot-out against the FA

The UK Trademarks Registry has dismissed an opposition by Henkel KGaA to a UK application to register the England football team badge incorporating the words 'THE FA' above a three lions design. Despite the opposition being based on an earlier Community trademark registration for FA, the registry clarified that a prior mark's reputation in Europe (other than the United Kingdom) is of no relevance in UK opposition proceedings.

16 June 2006

Discretion on late filing of a defence clarified by practice notice

In response to differing judicial interpretations in relation to the exercise of the discretion under the Trademarks Rules 2000 to accept the late filing of a defence, the UK Patent Office has issued Tribunal Practice Notice (TPN 1/2006) on the exercise of discretion in revocation and invalidation proceedings. The practice notice supports the view set out in Music Choice Ltd v Target Brands Inc.

24 May 2006

KLAUS KOBEC decision issued by High Court

In Fields v Klaus Kobec Ltd, the High Court of England and Wales has issued a decision in relation to use of the mark KLAUS KOBEC on watches, which serves as a reminder that (i) the right to trade under a brand following termination of a sales and marketing agreement should be clearly delineated, and (ii) a court will be reluctant to infer ownership of a mark which differs from that registered.

05 May 2006

Changes to examination on relative grounds proposed

In a bid to halt the decline in the number of national registrations, the UK Trademarks Registry has issued a consultation paper entitled "Relative grounds for refusal - the way forward", designed to identify possible changes to the national registration process, which would provide businesses in the United Kingdom with an affordable alternative to the Community trademark.

07 April 2006

Issue estoppel may prevent use of certain arguments in court

In Special Effects Ltd v L'Oréal SA, the High Court of England and Wales has ruled that a party can be issue-estopped by proceedings in the Trademarks Registry from running the same arguments in a dispute between the same parties in any subsequent litigation. The decision could have important consequences for trademark disputes.