tag:blogger.com,1999:blog-5574479.post2556955181559773414..comments2024-03-29T06:53:23.405+00:00Comments on The IPKat: Intel v CPM: what the experts say ... so farVerónica RodrÃguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-5574479.post-47875073008098649912009-01-22T16:33:00.000+00:002009-01-22T16:33:00.000+00:00Just picked up on these comments having read the c...Just picked up on these comments having read the case in full and am not persuaded by Ilanah's view that it is not right to say that it's not sufficient for consumers to buy more of the second brand.<BR/><BR/>See para 78 where the Court says that it is immaterial whether the "proprietor of the later mark"[sic] draws real commercial benefit from the distinctive character of the earlier mark. <BR/><BR/>The Court has got it right here. The mischief that Ilanah is looking at is free-riding (and not dilution)(currently being considered by the Court in L'oreal v Bellure).Dr Schoenhttps://www.blogger.com/profile/16416876559415465874noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-15256096890802609582008-12-04T10:12:00.000+00:002008-12-04T10:12:00.000+00:00I really do not think that the ECJ's ruling should...I really do not think that the ECJ's ruling should come as a surprise. Article 4(4)(a) of the Directive specifically requires proof of of one or both of two ingredients, ie that use of the mark takes or would take unfair advantage of, or is or would be detrimental to the distinctive character or the repute of the earlier mark. There is no room for expansion into the concept of 'dilution as applied by the American courts. In most cases, I suspect, it will be fairly obvious when the requirements of art 4(4)(a) are met, and not very much evidence would be required. If the court is satisfied that the use is (or would be) 'unfair', or 'trading on an earlier mark', than that is enough. But in a case such as INTEL v INTELMARK, in view of the fact that the parties operate in different sectors, the matter is not obvious and therefore evidence is needed. As Lee Curtis suggests, judges would apply their common sense. Is the ruling, as a matter of reality, 'bad for brands'?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-86732392934757142972008-12-02T09:37:00.000+00:002008-12-02T09:37:00.000+00:00I read through these comments with an increasing s...I read through these comments with an increasing sense of annoyance. It has never been the case that well-known marks or brands have had absolute protection, or a 'monopoly' - a cursory reading of the wording of the legislation makes that obvious. <BR/><BR/>I agree that it's not easy to show a change to the economic behaviour of consumers, but I'm not sure that Andy Millmore is right to say that it's not sufficient for consumers to buy more of the second brand. Most of the ECJ's comments were addressed to detriment to distinctive character, where one would expect harm (i.e. fewer sales of the first) rather than an advantage to the later brand to be the decisive factor. <BR/><BR/>Finally, contrary to what Paul McClenaghan has said, the US courts haven't given that much of a wider ability to protect against dilution. Just look at the 2008 Victoria's Secret case - the US District Court required a likelihood of dilution - does that sound familiar? It should - it's the standard the ECJ is using. Frankly, big brand owners were lucky to get away with a likely dilution standard - the alternative was actual dilution, and then they'd be in a pickle.Ilanahhttps://www.blogger.com/profile/04769375670713505896noreply@blogger.com