A new case has been referred to the European Court of Justice. It's Case C-145/05 Levi Strauss & Co v Casucci Spa, from the Cour de Cassation, Belgium. The curia website reads as follows:
Reference has been made ... for a preliminary ruling in the proceedings between Levi Strauss & Co and Casucci Spa on the following questions:

* For the purposes of determining the scope of protection of a trade mark which has been lawfully acquired on the basis of its distinctive character, in accordance with Article 5(1) of Council Directive 89/104, must the court take into account the perception of the public concerned at the time when use commenced of the trade mark or similar sign which allegedly infringes the trade mark?

Levi Strauss -- and the trousers he was never photographed while wearing ...

* If not, may the court take into account the perception of the public concerned at any time after commencement of the use complained of? Is it entitled in particular to take into account the perception of the public concerned at the time it delivers its ruling?

* Where, in application of the criterion referred to in the first question, the court finds that the trade mark has been infringed, is it entitled, as a general rule, to order cessation of the infringing use of the sign?

* Can the position be different if the claimant's trade mark has lost its distinctive character wholly or in part after commencement of the infringing use, but solely where that loss is due wholly or in part to an act or omission by the proprietor of that trade mark?

The IPKat looks particularly forward to the answer to the first of those questions: the relationship between the scope of protection accorded to a trade mark and the perception of the public has already been considered in terms of the 'principle of proportionality' (the better-known the mark, the broader the protection), but public perception of a mark is not a constant: it may vary in accordance with such factors as the nature of the use made of it by its owner or others, the presence or absence of competitors and so on. Merpel asks, why are questions to the ECJ always couched in such stiff and formal terms, and does it matter? The ECJ is quite happy to rewrite the questions so that it can give the answers it thinks the referring court should want.

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