Dissent in the Registry!
The IPKat received the following missive from a little bird of his acquaintance:
I don't know if you guys have picked up on a persistent area of conflict between the APs (Appointed Persons - or should that be people?) and Registry in the area of Section 5(2)interpretation.
Relying on the ECJ Vedial case, our folks are pre-empting the likelihood of confusion question by eg finding that the mark and/or goods are dissimilar therefore no confusion can arise. The APs say that this is wrong and it's all a question of degree and we should not treat the issue as 'yes/no' binary etc.
In the APs way of thinking goods/services as distant as advertising and shirts (see eg Ben Sherman case) are capable of being similar for the purposes of 5(2).
The IPKat is broadly with the APs on this one - part of the global appreciation approach is that a deficiency in one requirement can be compensated for by an abundance in another. Thus, there can be no set level for any of the requirements. However, it's clear from the ECJ's decision in Canon that where there is a complete lack of one of the requirement, the s.5(2) case is lost.
Dev Gangjee of the LSE tells the IPKat that the LSE is launching a rather impressive little set of IP seminars. First up this Thursday is Prof Barton Beebe of Cardozo Law School, Yeshiva University, NY, speaking on 'An Empirical Study of U.S. Courts' Use of Multifactor Tests in Intellectual Property Adjudication'.
All readers are cordially invited for this talk by Barton Beebe, who's been doing some provocative empirical work on multifactor tests in both US Copyright and Trade Marks law. It looks particularly interesting for those tracking the multifactor global likelihood of confusion test under EU trade mark law.
The session's at 6pm in LSE Old Building, A 318.
Sunday, 21 January 2007
Posted by Ilanah at 1:09:00 p.m.