Advocate-General Tizzano of the European Court of Justice issued an Opinion yesterday in Case C-228/03 Gillette v LA-Laboratories, on a reference from the Korkein Oikeus (Finland). Sadly this exciting-looking document, which deals with defences to trade mark infringement under Article 6(1)(c) of Council Directive 89/104 (the harmonisation directive) is available only in French, German, Italian, Spanish, Finnish and Swedish -- but not in English.
The IPKat asks if any kind speaker of one of the languages listed above would be so kind as to say what the question referred to the ECJ is and how the Advocate General thinks it should be answered.
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Skimming rapidly:
ReplyDeleteTo summarize, the question is: in what circumstances is the use of the mark of another enterprise to be seen as lawful in the meaning of the directive?
Now jumping to the end (Excuse haste and failure to read three-quarters of the opinion)
V – Ergebnis (Results)
92. Suggested answers to questions raised:
1. For Article 6.1.c...to apply, it is merely necessary to determine if stating the other enterprise's mark is necessary as an indication of the purpose of the goods (or the service) and whether it does not lead to confusion with regard to the origin of the goods - therefore, when deciding whether it is admissible to use someone else's mark, it makes no difference whether a main product (?Hauptware), accessories or replacement parts are involved.
2. It is necessary to use another enterprise's mark as a reference to the purpose of goods if this is the other means to provide consumers with comprehensive information about possible uses of the goods.
3. An economic operator (a trader?) is observing the 'respectable customs in commerce or trade' if, when using another enterprise's mark, it does not create the impression that there is a trading connection between itself and the trade mark owner, and does not exploit the distinctive character/capacity to distinguish or the repute of this mark in an unfair way. The fact that
an economic operator also sells the goods itself and attaches another enterprise's mark to the goods does not automatically mean that it claims that its goods and those of the owner of the trade mark are equal in quality. Instead, the conduct of the economic operator must be the subject of a comprehensive assessment of all relevant circumstances.
4. The circumstance that the economic operator that attached the other enterprise's mark to one of its products itself also markets the kind of goods together with which the goods first mentioned are to be used is an important aspect when assessing the admissibility of the use of the trade mark, but it does not alter the assessment criteria.
HTH, Margaret Marks
www.margaret-marks.com/Transblawg
Thanks so much, Margaret. You (and your blog) are wonderful!
ReplyDeleteThank you. What a horrible translation - I should have stuck to 'anonymous'. Let me know if it doesn't make sense to you and I'll polish it! Was done in a hurry.
ReplyDeleteMM