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Trade Marks
| Image by Riana Harvey |
Marcel Pemsel demonstrated how difficult it can be to prove the distinctiveness of a figurative mark on its own, when it is generally used in conjunction with a word mark. This was exemplified in L’Oréal’s appeal to the Board of Appeal of the EUIPO (BoA) against Guangzhou Ya Ti Ao Jia Cosmetics Co. The BoA dismissed L’Oréal’s appeal due to the weak distinctive character of the rose accompanying the word mark “LANCÔME”, which is acknowledged to have a stronger influence on consumers than the figurative element. The rose figure on L’Oréal’s mark was not deemed sufficiently distinctive, and the submitted evidence did not clearly demonstrate that the rose device alone (separate from the word mark “LANCÔME”) had acquired distinctiveness through its intensive use. Moreover, the distinctiveness of the word component of the contested sign (i.e., ArtÍscare), and the visual, aural, and conceptual comparisons of ArtÍscare and LANCÔME led the BoA to conclude that there can be no finding of a likelihood of confusion based solely on the rose device.
Copyright
Eleonora Rosati evaluated the recent Opinion of Advocate General (AG) Szpunar in Kwantum v Vitra (Case C-227/23), which primarily addressed the following question: “Can EU Member States, relying on Article 2(7) [of the Berne Convention] (to which the EU in itself is not formally a party), set their own reciprocity rules for copyright protection of works of applied art or is such a possibility precluded by EU law?” According to the AG, the implementation of the InfoSoc Directive means that EU Member States are precluded from freely applying Article 2(7) of the Berne Convention. The AG also clarified that Article 2(7) merely provides an option that member states may choose to exercise, and it is entirely permissible for the EU to decide not to do so. Although this represents only the AG’s opinion, our PermaKat considers it likely that the Court of Justice of the EU will issue a similar judgement, consistent with its established case law.
News and Opportunities
Anastasiia Kyrylenko notified The IPKat readers about some opportunities and events. Job openings include a postdoctoral researcher and a research assistant position at Maynooth University, as well as an intellectual property lawyer role at Netflix’s London office. Upcoming events include a joint seminar hosted by the European Intellectual Property Office and the Community Plant Variety Office, covering the latest hot topics in the IP world, and a training offered by MARQUES, Stockholm University, and the Swedish Anti-Counterfeiting Group. For details and further events and news, do not forget to have a look at our latest “Sunday Surprises” post here.
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