Intellectual Property Law Essay Example | Topics and Well Written Essays - 2750 words

Intellectual Property Law - Essay Example This essay explores that there are three sets of secnarios where trade mark can be considered to be infringed under â€Å"section 10 of the 1994 Trade markts Act. â€Å" †¢ Where a plaintiff(P) establish that the defendant (D) is employing an analogues sign for analogues products or services – Article 5 1(a) / Section 10(1) . †¢ Where P can establish that D is employing a similar or analogues sign as regards to similar or analogues products or services and hence , it may result in confusion among consumers. Article 5 1(b) / Section 10(2) †¢ Where P establish that D is employing a similar or analgoues sign and this result in unfair benefit of P’s mark or injuring its repute or disitncitve character withoud due cause. Article 5.2 / Section 10(3). In â€Å"L’Oreal v Bellure† case, the main issue was that whether â€Å"look-alike† scents and pack marketed by the defendants violated the registered signs owned by the plaintiff under section 10(3) of the Trade Marks Act of 1994. In this case both UKs High Court and CJEU found that some of the scent bottles and packaging employed for ‘look-alike† perfumes contravened the registered trade marks as the defendant enjoyed an unjust benefit of the reputation or character of the registered trade marks. The court observed that the magnitude of the resemblance was intentional. The defendant attempted to â€Å"wink at† the premium brand’s packaging. The scents preferred as comparativeness, which were famous brands due to their extensive advertisement. (Horton 2011). The defendant by infringing the perfumes derived advantages from such advertisement and sponsorship of the expensive perfumes. Thus, the benefit for the expenses incurred for sponsoring, maintaining and improving a specific trade mark has been enjoyed by the defendants. This results in â€Å"free raiding â€Å"and thus amounting in enjoyment of unfair benefit. (Horton 2011). In Google France v Louis Vuitton and Interflora Inc, three respondents alleged that usage of trade marks, especially in the AdWords service by Google was itself a contravention. It was alleged that the entry of their trade mark names by the users of the internet in the search engine of the Google which activated the display under the caption â€Å"sponsored links† of connection to, as regards to Vuitton, sites presenting replication of products of Vuitton and as regards to Thonet and Viaticum, of connecting to the trade marks of their respective competitors. In each case , the row begun fr om the usage , as keywords in reference service of the internet , of marks which match up to trade marks , without approval from the owners of these trade marks. Before ECJ, the distinct question was that whether Google can bank upon the exemption under Article 14 of Directive 2000/31, which offers exemption for hosting for â€Å"information society services,† CJEU remitted the case back to the domestic court and held that the usage of trade marks by Google in the AdWords service could not be regarded as an infringement. (Roncaglia & Sironi 2011:170). In L’Oreal case, the main focus was on the commercial benefits derived by the defendants instead of damages to the business of the trade mark owner. There is no necessary to establish any harm or confusion among consumers, the business rivals might still derived advantages from the substantial investment made by the trade mark owner in establishing his brand in the market. Thus, the plaintiff has to establish that the def endant has derived a commercial benefit from the familiarity of his mark by demonstrating a linkage with the famous mark through use of a similar or identical sign. (Horton 2011:550). The art.5.2/ art.9 (1) (c) was related by CJEU in their verdict and stated that a trade mark owner can safeguard his mark against any misuse whenever there is chance for infringement but also can proceed against the defendant when the mark’s other features are impacted like any warranty of the quality of the products or services and those of advertisement, communications and investment.