TRADE MARKS
De Landtsheer Emmanuel SA -v- Comite Interprofessional du Vin de Champagne and Veuve Cliquot Ponsardin SA, (ECJ)
The ECJ has once again confirmed a robust attitude to comparative advertising, and broadly followed the Advocate General’s Opinion in this case relating to a comparison between champagne and beer in comparative advertising. The judgment confirms that the Comparative Advertising Directive should be interpreted in a broad manner, to cover advertisements that refer only implicitly to competitors or their products, but by which consumers could identify one or more competitors. The decision is also notable for permitting the comparison of products protected by a designation of origin (PDO), and those that are not. It is likely that within this framework, competing goods may be able to refer to the pricing or other characteristics of the protected goods, which will impliedly allow them benefit from their allure, without themselves qualifying for PDO status
For the full judgment of the ECJ in this case, click here
Boehringer Ingelheim & others -v- Swingward & others (ECJ)
The European Court of Justice has given its long awaited judgment in Boehringer, which concerns the extent to which importers may change the original packaging of branded pharmaceuticals that are traded across EU borders. The judgment is a positive one and differs from the Opinion of the Advocate General in the case, delivered over a year ago, in a number of aspects that are favourable to trade mark owners.
For our full Law-Now on this important case, click here
Alcon Inc. v OHIM, (ECJ)
In a dispute about the possible conflict between the marks TRIVASTAN and TRAVATAN for eye treatments in the pharmaceutical market, the ECJ agreed with the Court of First Instance (CFI) and the Advocate General in finding a likelihood of confusion. However, the Court’s view differed from the Advocate General on the definition of the "relevant public" applicable to prescription-only pharmaceutical products when assessing the likelihood of confusion.
For the full judgment of the ECJ in this case, click here
CONFIDENTIAL INFORMATION
Douglas v Hello! (House of Lords)
Their Lordships heard the final appeal in OK!’s claim against Hello! for breach of confidence and for the tort of interference with contractual relations. At first instance, Lindsay J held Hello! liable to OK! for breach of confidence and awarded damages of just over £1million, but the Court of Appeal had annulled this finding. In a 3:2 majority decision, characterised by some quite vocal disagreement between the Lords Justice, the appeal by OK! was allowed by the House of Lords on the grounds that Hello! had misused OK!’s commercially confidential information. Accordingly, the original order of Lindsay J at first instance was restored allowing damages of around £1million. In the leading judgment, Lord Hoffmann Lord Hoffmann explicitly rejected any suggestion that he was creating an "image right" or any other form of intellectual property. To his mind, OK! should be afforded protection not because it concerned the Douglases’ image, but simply because it was information of commercial value over which the Douglases had sufficient control to enable them to impose an obligation of confidence
For the full judgment of the House of Lords in this case, click here
PATENTS
Unilin Beheer BV v Berry Floor NV Information Management Consultancy Limited (t/a Responsive Designs and/or Tapis UK) B&Q plc (Court of Appeal)
The Court of Appeal has ruled that where a UK patent is litigated upon for infringement and damages are payable this position is unaffected by a subsequent finding that the patent is invalid by the European Patent Office ("EPO"). Furthermore, the court refused to overturn the Patent County Courts ("PCC") refusal to order a stay in proceedings in anticipation of an imminent EPO ruling. The decision brings to the patentee greater certainty, firstly that the UK court will more likely make a ruling without waiting for the EPO, and secondly that the UK courts’ order for damages will not be overridden by a subsequent EPO ruling possibly a number of years in the future. There are also wider implications on the patentee’s choice of jurisdiction in which to bring a claim for infringement.
For our full Law-Now on this important decision, click here
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 25/05/2007.
