Out Of Focus; Please, Sir ...

1 Out of Focus?

Yesterday the Court of First Instance (CFI) gave its decision in Case T-275/03 Focus Magazin Verlag GmbH v Office for Harmonisation inward the Internal Market.

ECI applied to register equally a Community merchandise grade (CTM) the discussion sign Hi-FOCuS for telecoms goods as well as services inward Classes ix as well as 38. Focus Magazin opposed, argument in that location was a likelihood of confusion nether Article 8(1)(b) of CTM Regulation as well as relying on its before High German merchandise grade FOCUS; this grade was registered inward 24 Classes of goods as well as services as well as Focus Magazin complained of a likelihood of confusion inward honor of all of them. The observe of opposition contained a certificate of registration of the High German mark, inward German, as well as besides a certificate of registration of the international merchandise grade FOCUS, this fourth dimension inward French.

The Opposition Division told Focus Magazin that, since it had non provided a consummate translation into French (the linguistic communication of the proceedings) of the certificate of registration of the High German merchandise grade on which the opposition was based, the opposition failed. Focus Magazin thus appealed to the Board of Appeal, supplying a an annex to its appeal a French translation of the High German certificate. This appeal was dismissed, next which it made a farther appeal to the CFI.

This fourth dimension Focus Magazin struck lucky. The CFI allowed the appeal as well as annulled the Board's conclusion asset that, yesteryear failing to convey into consideration the document produced yesteryear Focus Magazin inside the fourth dimension limit, the Board of Appeal had acted exterior the range of Art.74 of the CTM Regulation. The Board should receive got based its conclusion on all the matters of fact as well as of law, whether they were introduced inward the proceedings at showtime illustration or inward the appeal. Since the document inward inquiry had been annexed to the pleading lodged before the Board of Appeal, the Board ought to receive got taken trouble organisation human relationship of that document.

This is the form out of merchandise grade litigation that the IPKat hates. The opponent should receive got seat all its evidence inward monastic tell before the Opposition Division hearing; the Board of Appeal should receive got considered it (the Boards don't similar beingness treated similar showtime illustration decisors though). The merchandise grade was applied for to a greater extent than than half dozen years agone as well as this opposition has been litigated all the means from Kingdom of Spain to Grand Duchy of Luxembourg without fifty-fifty getting to the starting line. Worst of all, FOCUS is such a crummy mark. It's used yesteryear thus many products as well as services that it's most equally hackneyed equally the IPKat's much-hated lightbulb motiv. Merpel adds: half dozen years, for this?? This niggling spat could hold out resolved yesteryear sitting the parties downwardly for twenty minutes as well as hitting their heads together every thus oftentimes ...

Some other FOCUSes here, here, here, here, here and here



2 High German courtroom nether burn downwardly from Advocate General

A to a greater extent than enjoyable read is Case C-206/04 P Muehlens GmbH & Co. KG v Office for Harmonisation inward the Internal Market, inward which Advocate General Ruiz-Jarabo Colomer (left) delivered his Opinion this morning. This is an exciting flake betwixt Zirh International Corp., a CTM applicant who wants to register the discussion grade ZIRH for perfumes as well as toiletries as well as Muehlens, as well as Muehlens, who grip an before figurative grade for much the same goods containing the discussion SIR. Influenza A virus subtype H5N1 likelihood of confusion is alleged. The Opposition Division, the Board of Appeal as well as the Court of First Instance receive got all rejected the opposition but Muehlens perserveres, fortified yesteryear the fact that a High German courtroom has ruled that in that location is a likelihood of confusion inward infringement proceedings betwixt the same ii signs.

In advising the European Court to turn down Muehlens' appeal, the Advocate General concluded his see equally follows:

"74. ... when a national courtroom gives a conclusion inward which it employs an indeterminate legal concept backed upward yesteryear a direct applicable Community provision, such equally that relating to the likelihood of confusion of Community merchandise marks, inward a trend that openly conflicts amongst the case-law of the Court of First Instance of the European Communities, compliance amongst the abovementioned obligations as well as the cracking importance of the arrangement of preliminary references require it to receive got recourse to Article 234 EC inward monastic tell to avoid the legal doubtfulness which, inward judicial circles, arises from the coexistence of divergent judgments inside the Union.

75. The High German court’s conclusion rejects the Court of First Instance’s thesis that the grade of phonetic similarity betwixt the ii merchandise marks is thus insignificant that it volition non give ascent to whatever likelihood of confusion, since the grade of identity of the marks is non sufficiently great. In giving reasons for its decision, the Landgericht Hamburg relies on the case-law of the Bundesgerichtshof (German Supreme Court inward civil as well as criminal matters), according to which failure to regard phonetic similarities when evaluating the likelihood of confusion unjustifiably deprives the proprietor of the merchandise grade of only about of the protection to which he is entitled.

76. Even if it is accepted that the national judicial regime to which Article 234(2) EC applies, such equally the Landgericht Hamburg, relish a grade of latitude equally regards preliminary references, (44) the bespeak for the uniform application of Community police trace dictates that recourse must hold out had to Article 234 EC, specifically where the approach taken yesteryear a national high courtroom is at odds amongst that taken yesteryear a Community Court, especially if the decisive acquit on which a asking for a ruling mightiness receive got had inward resolving the dispute is taken into account.

77. The fact that the conclusion given yesteryear the showtime High German courtroom was opened upward to appeal does non diminish the terms caused, essentially yesteryear creating legal uncertainty, equally the Commission has emphasised. Faced amongst such a clear conflict of interpretation of a Community provision, the alone course of teaching opened upward to that courtroom was to utilisation Article 234 EC; (45) it is to hold out hoped, however, that an appeal courtroom volition mitigate the effects of the province of affairs that has arisen, for the sake of interpretative rigour as well as the European spirit that has presided over the comportment of the judicial regime inward that country, which has ever led the acre thus far equally concerns the sincere cooperation amongst the Court of Justice provided for yesteryear the Treaties.

78. In short, nosotros should likely non only complain of the means the Landgericht Hamburg has conducted itself inward this context; nosotros must besides promise that such dysfunctions volition hold out brought to an halt as well as that the legislature volition learn aware of how urgent it is to improve the complex legislative framework gear upward to facilitate harmonious evolution of economical action inward the Community equally a whole, achieving total institution as well as proper functioning of the internal marketplace seat inside a EU that is increasingly convinced of the importance of its contribution to the structure of a ameliorate continent".

Stirring stuff, the IPKat says! But volition the Court concur side yesteryear side Spring?