tag:blogger.com,1999:blog-5574479.post5395640528285620038..comments2024-03-18T17:10:35.838+00:00Comments on The IPKat: Likelihood of confusion: too simple to leave to the lawyers?Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger12125tag:blogger.com,1999:blog-5574479.post-41205499408547765462010-12-07T15:48:56.973+00:002010-12-07T15:48:56.973+00:00@Mark -- I'm looking to stir up some reaction ...@Mark -- I'm looking to stir up some reaction rather than to go for a fair and balanced summary: I leave that to you!Jeremyhttps://www.blogger.com/profile/01123244020588707776noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-37672906201949827942010-12-07T15:26:15.837+00:002010-12-07T15:26:15.837+00:00Your summary, Jeremy, is about as fair and balance...Your summary, Jeremy, is about as fair and balanced as Fox News...Mark Schweizerhttps://www.blogger.com/profile/04460433294632554129noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-28952628109255753092010-12-03T17:22:12.052+00:002010-12-03T17:22:12.052+00:00To paraphrase an old adage, why let the facts get ...To paraphrase an old adage, why let the facts get in the way of a good judgement?<br />Isn't asking a panel of consumers known as, er, a "survey"? We all know what the courts think of those.Tom Farrandhttp://www.hgf.comnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-21927142656241837852010-12-03T14:42:17.815+00:002010-12-03T14:42:17.815+00:00Anonymous 11.30,
If the word element is so import...Anonymous 11.30,<br /><br />If the word element is so important, why didn't ARTESA have a word mark? They were free to apply for one. <br /><br />Instead, they chose a device mark in which the device is the dominant factor. Therefore to my mind they should have rights which are commensurate with that fact.<br /><br />I whole-heartedly agree with the Kat's comments.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-35117973015540022662010-12-03T12:56:04.912+00:002010-12-03T12:56:04.912+00:00@ Jeremy
You have just put the Kat among the pige...@ Jeremy<br /><br />You have just put the Kat among the pigeons of my arguments - well, a little anyway ...<br /><br />Anonymous 11.30Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-32575708525353818642010-12-03T12:37:41.907+00:002010-12-03T12:37:41.907+00:00I believe that there is a respectable case to be m...I believe that there is a respectable case to be made for confusion to be regarded as a question of law, pre-grant of a trade mark registration, and for confusion to be regarded as a question of fact in connection with infringement. The advantage of confusion as a question of law pre-grant is to enable trade mark advisers to better advise their clients as to adoption of a trade mark, thus reducing conflicts. The public benefit is to have new registrations granted with a surrounding protective “cordon sanitaire”. The objection to this on the ground that the trademark registers are becoming “overcrowded”, is, simply, nonsense from a linguistic viewpoint. In connection with infringement/passing off of a trade mark right, I seen no equitable departure from the “questions of fact” principles as developed.<br /><br />There must, of course, be some limits to confusion as a question of law (although I may be unduly influenced here by the old Scots philosophy of “common sense”). I seem to remember an old German case in which FREEZE was held, on a points totting-up system, to be confusingly similar to VAN DER VLIETS, which would appear to be beyond the pale of common sense.George Souterhttp://www.lammipartners.finoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-73309076936875878962010-12-03T11:58:30.591+00:002010-12-03T11:58:30.591+00:00@Anonymous 11.30. You write "I doggedly hold...@Anonymous 11.30. You write "I doggedly hold onto the view that the IPKat used a sleight of claw - or tried to pull the fur over our eyes - by using a picture of the ARTESA mark in which the word ARTESA was almost illegible". Indeed, these are the very pictures which the Court used!Jeremyhttps://www.blogger.com/profile/01123244020588707776noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-60202576378556299262010-12-03T11:30:07.756+00:002010-12-03T11:30:07.756+00:00I doggedly hold onto the view that the IPKat used ...I doggedly hold onto the view that the IPKat used a sleight of claw - or tried to pull the fur over our eyes - by using a picture of the ARTESA mark in which the word ARTESA was almost illegible.<br /><br />As long as the word-mark element in a compound mark has any real significance, the two marks must be confusingly similar. Take out the verbal element of both, and I wholeheartedly agree that there is no confusion at all.<br /><br />And why is the word-element so important here? Because:<br /><br />a) on the wine list in restaurants (are these wines in fact good enough to merit inclusion in a wine list?) you almost never see the whole mark, only the name.<br /><br />b) arguably this is true also when placing a simple written order over the internet or by email - on fancy websites, of course, the whole mark will be prominently displayed, including its image.<br /><br />c) when ordering the stuff over the telephone again the problem is similar (who would dream of ordering wine with "I'd like a case of ARTESA wine - you know the one with the red triangle on the label" - and if one did, what would be delivered might just be barrel of Bass!).<br /><br />Simply assuming that the marks are always displayed next to each other (rather than relying on the average customers imperfect recall) and then finding no likelihood of confusion would not have been right!<br /><br />Incidentally, the likelihood of confusion would have been much more immediate to the bloggers here if only the word "ARTESA" had been in focus and clearly visible. If that had been so, perhaps even the voting ratio might have been significantly different!<br /><br />Oh, and for groups of relevant consumers - who'd pay them :-) ???Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-10279972216617438502010-12-03T10:47:30.154+00:002010-12-03T10:47:30.154+00:00the problem if we did as you suggest is that we...the problem if we did as you suggest is that we'd largely be out of a job! hooray for pompous box ticking rituals!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-3854882702352790122010-12-03T10:06:41.292+00:002010-12-03T10:06:41.292+00:00The Arteso mark on a bottle: http://tinyurl.com/35...The Arteso mark on a bottle: http://tinyurl.com/35jt2stTJnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-28802104768633072522010-12-03T10:00:24.571+00:002010-12-03T10:00:24.571+00:00The main problem here relates to the phonetic comp...The main problem here relates to the phonetic comparison of marks that have a strong visual element. <br /><br />A trade mark applicant has a choice whether to register a plain word or a combined word and device. If the applicant chooses to include the device, that should be treated as an essential feature of the trade mark. It is not fair to the applicant or to third parties that the device element should be simply ignored. If this approach means that a phonetic comparison is not possible or is given less weight, then so be it: we already accept that the same is often true of conceptual comparisons.Peter Smithnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-14251011550592900792010-12-02T22:55:24.540+00:002010-12-02T22:55:24.540+00:00I can't even contemplate a likelihood of a &qu...I can't even contemplate a likelihood of a "likelihood of confusion" with these two marks. The dominant element in my eyes is the triangle and modern look of Artesa compared to the more classical drawing of Arteso. The overall impression is very different even after a quick glance. <br /><br />It would be good to back up the results of any legal analysis with surveys of a representative sample of the very consumers who might be confused (or not). I think it is dangerous for the law to lose sight of what it is meant to achieve, or am I just confused?Natashanoreply@blogger.com