Quick questions

Are some trade mark assessments more equal than others? The IPKat notes that an argument frequently raised in Community trade mark appeals is the failure of a court or tribunal to apply the grandly-named "principle of equal treatment". This appears to be of possible application (i) where the unsuccessful party's trade mark has been assessed in accordance with a different test or standard to that used in respect of the successful party's mark, as well as (ii) where the unsuccessful party's trade mark has been assessed in a different manner to the same or a similar mark in different proceedings. However, while this Kat sees quite a lot of Community trade mark appeal decisions [and even sometimes reads them, adds Merpel], he can't recall many instances in which this ground of appeal ever succeeds -- though he's sure that it has done so at least once.  Do readers have any reflections as to the utility of this ground of appeal?  How often is it likely to succeed? Is it a serious ground of appeal in all cases or (as seems to be the case in decisions in which the court leaves it till last and then sweeps it away without too much effort) is it just the last weak argument which is thrown into the appeal in order to make it look more substantial than it really is?   Merpel also has a question: is this ground of appeal one which is tried in all national jurisdictions within the European Union, or is it  creature of just some of them?

Some people go to the most
extraordinary lengths to avoid
those pesky consumer surveys ...
Taking a look at surveys: can you help?  An occasional reader of this weblog is a small businessman who has spent the past few years in litigation against a multinational corporation which owns an extremely famous brand and which is convinced that our reader's trade mark is confusingly similar.  So far, our reader has been successful in defending his mark in the United Kingdom both at first instance and on appeal, but he is now facing similar proceedings in the United States. He is faced with survey evidence which appears to show, a little surprisingly, that a substantial percentage of those polled associated his mark with that of the multinational. He feels that there might just be something wrong with the methodology of the survey, but this is not his area of expertise.  Though this Kat hates to admit it, it's not his area of expertise either -- though he does recall that many consumers associate products with those of a market leader even when there is are no indicia of origin at all, which shows the power of a famous mark on a leading brand.  Accordingly, if there is any reader of this weblog who (i) knows a good deal about the methodology of consumer surveys and (ii) is willing to look over the survey for this reader on a pro bono basis, can he or she please email the Kat here with the subject line "Survey evidence", so that the Kat can forward it to his reader.
Quick questions Quick questions Reviewed by Jeremy on Monday, October 03, 2011 Rating: 5

1 comment:

  1. In appeals I constantly use (amongst others) the argument "principle of equal treatment" trying to get EU and DE trademarks registered and also enumerate several registered trademarks as examples for unequal treatment. However, when I have been successful in getting the mark registered after all the offices have always stated it was not on the grounds of unequal treatment but for other reasons. I get the feeling that citing other, similar marks that have been successfully registered is useful in creating a "bad conscience" :-) or at least showing the overall tendency in registration policy of the respective Office.


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