Today's offering from the Court of First Instance on the European Communities (CFI) was Case T-423/04 Bunker & BKR, SL v Office for Harmonisation in the Internal Market, Marine Stock Ltd intervening. Bunker, a Spanish company, applied to register a sign (illustrated, right) as a Community trade mark for the following goods and services:
* Class 18: ‘Leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins, hides; trunks and travelling bags; umbrellas, parasols and walking sticks; whips, harness and saddlery’;Marine Stock opposed the entire range of goods and services, citing its earlier Austrian registration of the word mark BK RODS for Class 25. The Opposition Division considered that there was some aural and visual similarity between the respective marks and allowed the opposition in respect to goods in Class 25 on the ground that, since the parties' goods were identical or similar, there was a likelihood of confusion. The Board of Appeal dismissed Bunker's appeal, whereupon Bunker appealed further to the CFI.
* Class 25: ‘Ready-made clothing for women, men and children; belts, footwear (except orthopaedic) and headgear’;
* Class 39: ‘Transport; packaging and storage of ready-made clothing for women, men and children, belts, footwear (except orthopaedic), and headgear’.
The CFI allowed the appeal, following a long and detailed comparison of the marks, on the basis that the marks were insufficiently similar, at least so far as the relevant Austrian consumer is concerned. The fact that there may be some resemblance between marks does not make them similar either.
The IPKat agrees with the conclusion. He's a little fed up, though, that appellants before the CFI are still asking that court to grant the application or order OHIM to register it. As the CFI says:
"... the applicant requests that the Court, inter alia, order OHIM to grant its application for registration. However, under Article 63(6) of Regulation 40/94, OHIM is required to take the measures necessary to comply with the judgment of the Community judicature. Accordingly, it is not for the Court of First Instance to issue directions to OHIM. It is for OHIM to draw the appropriate inferences from the operative part and the grounds of this judgment (Case T-163/98 Procter & Gamble v OHIM (BABY-DRY)  ECR II-2383, paragraph 53; Case T-331/99 Mitsubishi HiTec Paper Bielefeld v OHIM (Giroform)  ECR II-433, paragraph 33; Case T-34/00 Eurocool Logistik v OHIM (EUROCOOL)  ECR II-683, paragraph 12 and Case T-388/00 Institut für Lernsysteme v OHIM – Educational Services (ELS)  ECR II-4301, paragraph 19)".This has been well established law since 1999, so why are applicants (or their professional advisers) still asking for something they can't have? It's just more silly unnecessary verbiage that people have to read and respond to and that clients are paying for. The IPKat says, cut it out!
2 Latest European trade mark case reports
The October 2005 issue of Sweet & Maxwell's European Trade Mark Reports has now been published. As usual it contains several judgments, translated into English, in decisions from non-English speaking jurisdictions. This issue contains, among other cases,
* Stokke Gruppen AS v Trip Trap Denmark A/S (Federal Court, Switzerland): the claimant's trade mark for children's furniture was not used as registered and was therefore cancelled - but in the form in which it had been used it was a trade mark with a reputation that entitled it to protection;There are also cases from the European Court of Justice, the Court of First Instance, OHIM and the UK.
* Adidas-Salomon AG v Nike International (Regional Court, Cologne, Germany): the use by Nike of a two-stripe motif was held likely to cause confusion with Adidas' three-stripe mark even when used with the Nike Swoosh mark;
* Google v T**** S**** (First Court of Salonica, Greece): provisional relief granted to Google against use of the google.gr domain name.
As usual, the IPKat asks you to let him know here if you come across any recent trade mark cases that are worth translating into English for a large audience.
3 Palestine gets WIPO observer status
The IPKat has learned from the AGIP Bulletin (issued by Abu-Ghazaleh Intellectual Property) that Palestine became a WIPO Observer Member on Saturday 1 October, the Palestinian application being unanimously accepted during the WIPO's 41st General Assembly meeting. Accordingly, the Bulletin reads:
"Palestine will benefit from the role which the organization plays in promoting all aspects of intellectual property including protecting the rights of authors, inventors, trade mark holders, as well as the protection of cultural heritage".The IPKat is pleased to see that intellectual property rights feature among Palestine's priorities: good luck in protecting them!
Some Palestinian artists here