Christie’s Trade Mark Application

2020 ◽  
Vol 137 (4) ◽  
pp. 319-336
Keyword(s):  
Global Assessment ◽  
Trade Mark ◽  
Trade Marks ◽  
Average Consumer ◽  
Likelihood Of Confusion

  H1 Trade marks – Opposition proceedings – ZOHARA – Likelihood of confusion – Identifying the average consumer – Assessing aural similarity – Differences in pronunciation – Global assessment – Appeal to Appointed Person

FITNESS LEISURE LTD’S TRADE MARK APPLICATION

2019 ◽  
Vol 136 (10) ◽  
pp. 605-617
Author(s):  
Keyword(s):  
Trade Mark ◽  
Trade Marks ◽  
Likelihood Of Confusion

Abstract H1 Trade marks – Opposition proceedings – Procedure – Failure to consider all grounds advanced by the opponent – Earlier marks – Assessment of likelihood of confusion – Appeal to Appointed Person

Assessing Likelihood of Confusion

2019 ◽  
Author(s):  
Ilanah Fhima ◽  
Dev S. Gangjee
Keyword(s):  
Trade Mark ◽  
Trade Marks ◽  
The Public ◽  
Likelihood Of Confusion ◽  
Essential Function ◽  
The Right ◽  
Article 5

The likelihood of confusion test is inextricably linked to the principal justification for trade mark protection. If the essential function of a trade mark is to reliably indicate the commercial origin of a product in the marketplace, an action to prevent confusion amongst consumers, thereby impeding this origin indicating ability, is a necessary corollary. The language of Article 5(1)(b) (relative grounds) and Article 10(2)(b) (infringement) of the Trade Marks Directive 2015 (TMD 2015) indicates that the proprietor has the right to prevent a junior user from registering or using a mark where ‘because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public; the likelihood of confusion includes the likelihood of association with the earlier trade mark’.

scholarly journals The interpretation practice of The European Court of Justice while judging the conflict between labelling applied as trademark with elderly right of another person

2010 ◽  
Vol 58 (3) ◽  
pp. 85-90
Author(s):  
Hana Kelblová
Keyword(s):  
Consumer Protection ◽  
Trade Mark ◽  
European Court Of Justice ◽  
Patent Office ◽  
Trade Marks ◽  
Court Of Justice ◽  
Likelihood Of Confusion ◽  
European Court ◽  
The Law

The article deals with the verification of the starting hypothesis of complementariness of the law of consumer protection and the law of intellectual property. In order to achieve that goal the author analyzes individual the Czech Trade Marks Act from the standpoint of protection of rights and interests of consumers.The article follows the categorical requirement of a public law rule, the Consumer Protection Act, which prohibits deceiving consumers and establishes that deceiving may also consist in offering products and services unjustified designated by misleading trade mark.The consumer is deceived most frequently when trade marks are used for designation of products and their promotion. The Trade Marks Act may be analyzed in relation to consumer protection first from the standpoint of consumer protection against trade marks misleading someone about the origin and quality of products and services designated by them. Then it is possible to examine the question whether requirements of a designation for being registered as a trade mark are at the same time those attributes of the trade mark which meet the declared intention of the lawmaker, i.e. that the trade mark should be a source of information for the consumer about the origin and quality of the product de­sig­na­ted by it.Especially, the article deals with an interpretation of the conception „Likelihood of Confusion“ as the fundamental conception while judging the conflict with elderly trademarks applying for the re­gi­stra­tion into the list of The Patent Office.A perception of an average consumer is a fundamental factor for a judgement of „Likelihood of Confusion“ as results from the decision practice of The Czech Patent Office, Czech courts and The European Court of Justice. This is proof of the conclusion that rules of the Trademark Law are rules of the Consumer protection Law.

Similarity of Marks

2019 ◽  
Author(s):  
Ilanah Fhima ◽  
Dev S. Gangjee
Keyword(s):  
European Union ◽  
Crucial Role ◽  
Trade Mark ◽  
The European Union ◽  
Conceptual Similarity ◽  
Average Consumer ◽  
Court Of Justice ◽  
Likelihood Of Confusion ◽  
Constituent Elements

The test for similarity of marks has changed very little since it was laid down by the Court of Justice of the European Union (CJEU) in SABEL v Puma. Given that the court has adopted a strict approach to when marks will be identical, similarity of marks plays a crucial role in ensuring that the interests of trade mark owners are adequately protected. There the court stated that a ‘global appreciation of the visual, aural or conceptual similarity of the marks in question, must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components’ with a view to determining whether the signs in question are similar enough to lead to a likelihood of confusion in the minds of the average consumer of the goods or services in question. It has subsequently been suggested that, where marks have other sensory aspects, as would be the case with, for example, an olfactory mark, these too should be considered. The court also noted that average consumers tend to view marks as a whole, rather than dividing them into their constituent elements.

38. Relative grounds for refusal

2018 ◽  
Author(s):  
L. Bently ◽  
B. Sherman ◽  
D. Gangjee ◽  
P. Johnson
Keyword(s):  
European Union ◽  
Trade Mark ◽  
The European Union ◽  
Trade Marks ◽  
Likelihood Of Confusion ◽  
The Uk

This chapter focuses on ‘relative grounds’ for denying an application to register a trade mark as set out in section 5 of the Trade Marks Act 1994 and Article 8 of the European Union Trade Marks Regulation (EUTMR). It identifies ‘earlier trade marks’ and ‘earlier rights’ before turning to the tests which allow a prior mark to oppose the registration of a subsequent one. First, it reviews the so-called double identity ground, where an identical (later) mark is applied for, in the context of identical products. Second, it considers when likelihood of confusion may be established. Third, it surveys three situations referred to collectively as ‘dilution’, where the later mark may mentally evoke the earlier one in a way that is not confusing, yet still wrongful. It also explains the ‘advertising function’ of a trade mark, along with requirements relating to reputation and ‘due cause’. Finally, the chapter discusses relevant provisions governing unregistered trade marks, copyright, design right, and registered design right in the UK.

TINY REBEL BREWING CO LTD’S TRADE MARK APPLICATIONAppointed Person (Trade Marks)Prof. Ruth Annand: 16 August 2019BL O/482/19; [2019] R.P.C. 25

2019 ◽  
Vol 136 (10) ◽  
pp. 665-678
Author(s):  
Keyword(s):  
Trade Mark ◽  
Fruit Juices ◽  
Distinctive Character ◽  
Trade Marks ◽  
Passing Off ◽  
Likelihood Of Confusion

Abstract H1 Trade marks – Opposition proceedings – Device marks – TROPICANA – Comparison of goods – Whether beers similar to fruit juices – Comparison of marks – Dominant element – Descriptiveness – Acquired distinctive character – Conceptual differences – Assessment of likelihood of confusion – Passing off – Appeal to Appointed Person

scholarly journals The New Breed of Trade Marks: Sounds, Smells and Tastes

2001 ◽  
Vol 32 (1) ◽  
pp. 277
Author(s):  
Jacey K McGrath
Keyword(s):  
New Zealand ◽  
Trade Mark ◽  
Point Of Sale ◽  
Trade Marks ◽  
Likelihood Of Confusion ◽  
Ability To Act

Sounds, smells and tastes can now be registered as trade marks in New Zealand under the Trade Marks Act 1953. These novel types of signs raise concerns about their ability to act as effectively as the more traditional word and design trade marks. Consumers will have to utilise less perceptive senses in order to comprehend these marks, and may not be able to rely on them to distinguish products at the point of sale. The inherent intangibility of these marks may also have implications for determining questions of similarity and the likelihood of confusion in infringement actions.Unlike the more traditional trade marks, sounds, smells and tastes are usually intrinsic features of products. Such characteristics should not be registrable as trade marks because they are not sufficiently separate from the underlying goods and would allow a trader to have a monopoly over their production. The rationale behind trade mark protection must not be lost sight of in the desire to shield innovative traders who utilise exciting signs to market their products.

Distinctiveness of the Marks

2019 ◽  
Author(s):  
Ilanah Fhima ◽  
Dev S. Gangjee
Keyword(s):  
European Union ◽  
Trade Mark ◽  
The European Union ◽  
Trade Marks ◽  
Likelihood Of Confusion ◽  
European Trade ◽  
The Impact ◽  
Scope Of Protection ◽  
Practical Level

The role of distinctiveness is perhaps the least understood element of the likelihood of confusion analysis. Obscure in its origins, the idea that the more distinctive a mark is, the more likely confusion should be has been repeatedly accepted by the Court of Justice of the European Union (CJEU), but this is also strongly criticised by commentators and UK judges in particular. This chapter seeks to understand the role that distinctiveness plays in the assessment of confusion, explaining how it entered the European trade mark system and critically evaluating its role. On a practical level, this chapter seeks to understand the impact of distinctiveness through examples of levels of distinctiveness that have and have not been accepted to result in enhanced protection, and also to consider how tribunals have dealt with the overlap between distinctiveness for registrablity and likelihood of confusion purposes. However, the chapter ends with a note of warning: although it is possible to find a significant number of cases where distinctiveness is employed to enhance the scope of protection trade marks, in the vast majority of cases, this factor is either not mentioned or deemed irrelevant.

scholarly journals A Tale of Confusion: How Tribunals Treat the Presence and Absence of Evidence of Actual Confusion in Trade Mark Matters

2001 ◽  
Vol 32 (1) ◽  
pp. 75
Author(s):  
Paul Scott
Keyword(s):  
Trade Mark ◽  
Trade Marks ◽  
Likelihood Of Confusion ◽  
Number Of Factors ◽  
Absence Of Evidence ◽  
Presence And Absence

In determining whether two trade marks are likely to cause confusion or deception tribunals consider a number of factors. Two important ones are the presence or absence of evidence of actual confusion. With the presence of such evidence tribunals are more willing to find a likelihood of confusion. With the absence of such evidence tribunals are more willing to find no likelihood of confusion. However, contrary authority exists for both propositions. This article suggests aframework for examining both the presence and absence of actual confusion evidence. It argues that only after closely examining the circumstances of each case should a tribunal regard the presence or absence of actual confusion evidence as probative.

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