The IPKat has received this letter from his respected friend Professor Dirk Visser (Trademark Law Institute & Leiden University, not to mention leading Dutch IP practice Klos Morel Vos & Schaap), which discusses last week's ruling of the European Court of Justice in L’Oréal/Bellure (see IPKat note here). Professor Visser's letter reads as follows:
"Dear friends of the Trademark Law Institute (and some other learned and honorable Trademark friends and colleagues),The IPKat wonders how representative Professor Visser's views are of non-UK thought. If you have any special message to share with the readers of this blog, please post them below. If you'd rather share them with Professor Visser alone, you can email him here. Merpel says, it doesn't matter whether people think the ruling is good or bad: the real issue is whether it is right in terms of applying the existing law to the facts on which the reference is based. Tufty says, I've set up a poll in the sidebar where which you can "vote" for the position that reflects your view.
I just would like to share with you my thoughts on this landmark decision by the ECJ and maybe you can give your views to get an idea how this decision is received throughout Europe.
To me, the L’Oréal/Bellure decision by the ECJ is a breath of fresh air after the often ambivalent, unpractical or systematically incomprehensible recent decisions in trade mark cases by the ECJ.
In my opinion in L’Oréal/Bellure the ECJ clearly states what is probably the most important basic moral emotion of IP and unfair competition law: “Thou shall not (1) intentionally, (2) without investment of one’s own and (3) without paying any compensation, reap profit of another’s considerable (creative, innovative or commercial) effort, investment or goodwill”. (“Thou shall not reap where thou has not sown”).
(Evidence of) misrepresentation is not required, (evidence of/ risk of) confusion is not required, (evidence of) harm is not required (although there probably always is harm in such a case).
You can like this result or not, but at least and for once, it is clear what the ECJ says.
Lord Justice Jacob will probably not like it, many other ‘free competition’-minded people in (and outside) the UK will not like it. But it does in my opinion probably reflect what most IP judges, lawyers and laymen basically believe and feel, at least on the continent.
Intent is (and probably always has been) an important factor, lack of own investment is too and so is of course not paying any compensation.
The decision also give clear guidance as to how to decide the case at hand: smell-alikes, designed or marketed as cheap copies, are not allowed. Again, you can like it or not, but at least it is clear, and it is in my opinion a better basis than copyright in the fragrance.
I do look forward to your views!"