Dilution Revisited: General Court Cries Wolf

The EU General Court has ruled that demonstrating detriment to a trade mark's distinctive character does not require proof of a change in economic behaviour of the average consumer of the goods or services for which the mark is registered. Although this point had been considered by the ECJ in a previous case (INTELMARK), the EU General Court interpreted Article 8(5) of the Community Trade Mark Regulation differently, finding that such effect would be inevitable following the dispersal of the identity of the earlier mark as a result of dilution, such that no separate evidence was required.

Background

In March 2006, Entec Industries Ltd (Entec) filed an application for registration of a Community trade mark at OHIM in respect of machinery and tools intended for professional gardening. In December 2006, Societe Elmar Wolf (SEW), the intervener in the case, filed a notice of opposition against the registration. The opposition was based on SEW marks registered in 1948