Not such a Bovver ...? A Beneluxian responds

Last week the IPKat commented on the Advocate General's Opinion in Case C-108/05 Bovemij v Benelux Trade Marks Office. According to the Kat the Opinion seems strange and he wonders whether it will be adopted by the Court:
"In economic terms and in terms of principle it seems strange to end up with the conclusion that, in a large community that consists of cats, dogs, sheep, goats and badgers, a mark that no dog regards as distinctive can't be registered as a trade mark while, in a smaller jurisdiction consisting of merely cats and dogs, the fact that cats regard the mark as distinctive but dogs don't do so will not affect the mark's ability to be registered."
The IPKat's firm friend Marius Schneider (a European & Benelux Trade Mark and Design Attorney with Gevers & Partners) responds:
"One should not forget to examine this issue from an economic point of view. First, the Benelux applicant does not have an alternative to the Benelux trade mark (unlike the CTM applicant). There have been no Belgian marks since 1971! Further, the Benelux system is supposed to be advantageous for companies in the three countries since it intends to create a bigger market. However, the applicant whose activities are for economic reasons confined to one Benelux country (eg a Belgian publisher of magazines for real estate property in the Dutch language) and who can only show acquisition of distinctive character through use in one country will end up not receiving protection for his descriptive trade mark. Does that not sound unfair to you? It does to me!".
The IPKat is not convinced. The Belgian publisher of Dutch magazines on real estate is entitled to protection if he uses his descriptive trade mark, but not to trade mark protection that ties up what is presumably a meaningless and free-to-use word for non-Dutch speakers. Let the publisher have protection under unfair competition law since he is using the mark - that will protect him against the actions of others that are unfair. But why give him a registered trade mark, which confers wider protection than he needs?

Does anyone know?

The IPKat has been asked the following question by his good friend Deeply Puzzled:
"Does anyone know when the GAT Opinion [of the European Court of Justice] will be available in English and when the decision will be out, please? Also will it be con-joined to the Roche case?"
If you know the answer, do please share it! There's a damsel in distress who really does want to know.

The GAT Opinion was delivered on 16 September 2004 in eight languages, none of which was English. The Roche Opinion was delivered on 8 December 2005 in nine languages, but again not in English.
Both cases deal with enforcement of judgments and the Judgments Convention.
NOT SUCH A BOVVER; DOES ANYONE KNOW? NOT SUCH A BOVVER; DOES ANYONE KNOW? Reviewed by Jeremy on Thursday, April 06, 2006 Rating: 5

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