... Later On The Agony, Instantly The Ecstasy!
The previous spider web log (see below) bemoaned the non-appearance of English linguistic communication in addition to French versions of the European Court of Justice Opinion inwards Praktiker Bau that looked equally though it was really of import to us IP enthusiasts.
This Opinion of 13.01.05 was delivered inwards French however extraordinarily is non available inwards French on the ECJ website. This summary is from the High German alongside really cursory comparing alongside the Spanish.
This concerned a ref nether Art. 234 EC to the ECJ yesteryear the Bundespatentgericht. The questions were:
1 Does retail trading constitute a service inside the pregnant of Article two of the Directive?
If the answer to this inquiry should endure affirmative:
2 To what extent must the content of such services yesteryear a retailer endure specifically stated inwards fellowship to guarantee the certainty of the subject-matter of merchandise score protection that is required inwards fellowship to
(a) fulfil the move of the merchandise score pursuant to Article two of the Directive, namely distinguishing the goods or services of 1 labor from those of other undertakings, and
(b) define the range of protection of such a merchandise score inwards the consequence of a conflict?
3 To what extent is it necessary to define the range of similarity (Article 4(1)(b) in addition to Article 5(1)(b) of the Directive) betwixt those services yesteryear a retailer and
(a) the other services provided inwards connexion alongside the sale of goods, or
(b) the goods sold yesteryear that detail retailer?
In brief, the A-G affirmed/opined that:
re 1, marks may endure registered for retail services;
re Q2, such registrations must endure ‘concretised’ (made specific) sufficiently such that others tin ascertain the concrete services for which the score is registered equally good equally the goods or types of goods to which such services relate; and
re Q3, a registration for the concretised retail services, equally inwards the answer to Q2 is non limited, equally regards the range of ‘similarity’ nether Article 4(1)(b) in addition to Article 5(1)(b) of the Directive, yesteryear the other services provided inwards connexion alongside the sale of goods, or the goods sold yesteryear that detail retailer – inwards this connection, the A-G approves the next extract from Communication 3/01 of 12 March 2001 of the President of OHIM (the post-Giacomelli Communication):
“Conflicts
The limitation of applications in addition to registrations for such services yesteryear indicating the champaign of action of retail or other selling services volition trim back the likelihood of conflicts because the lead chances of confusion between, for example, retail sales of meat on the 1 mitt in addition to of electrical goods on the other is non-existent.
As regards conflicts betwixt services in addition to goods, the Office takes the persuasion that, spell a "similarity" betwixt goods sold at retail in addition to retail services cannot endure denied inwards the abstract, the lead chances of confusion is unlikely betwixt retail services on the 1 mitt in addition to detail goods on the other except inwards really detail circumstances, such equally when the respective merchandise marks are identical or virtually in addition to then in addition to well-established inwards the market. Each instance that arises volition of flat endure dealt alongside on its ain merits.
Given that province of affairs those requesting registration of marks for retail (or similar) services should non await that they thereby obtain protection against the work or registration of marks for goods. If such protection is required equally well, it is clear that registration for goods must endure requested equally well.”
(who points out that the Giacomelli instance is available inwards English linguistic communication at [2000] ETMR 277) rejoices both that he at 1 time has to a greater extent than or less thought what's going on in addition to too that the Advocate General's Opinion appears to brand to a greater extent than or less sense.
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