Today's Ecj Decisions

Two decisions from the ECJ.

Today the ECJ delivered its determination inward Case C-361/04 P Ruiz-Picasso v OHIM. The illustration is an appeal that has worked its means upwards from OHIM against a determination that an application for PICARO for vehicles was non probable to hold upwards confused amongst the before PICASSO CTM, too registered for vehicles too owned past times the estate of the creative individual Pablo Picasso. The opposition has ever hinged on the grade of importance that should hold upwards given to the fact that the term PICASSO is good known to the populace equally the advert of the famous artist. Before the ECJ, the Picasso Estate argued starting fourth dimension that the conceptual departure betwixt 2 signs cannot hold upwards found to hold upwards increased on line organisation human relationship of the fact that the important of 1 of them is clear too specific then that it tin bathroom hold upwards grasped at in 1 lawsuit past times the populace concerned (as the lower tribunals too the Advocate General had found). They too argued that since the confusion analysis must guide maintain house inside the context of the goods for which the grade is registered too applied for, the important of PICASSO equally a famous creative individual should non guide maintain been relevant.

The ECJ rejected the appeal.

Famous names too the likelihood of confusion assessment

* The CFI had non erred inward finding that, where 1 of the compared signs has a clear meaning, whatever conceptual differences tin bathroom give the sack whatever visual too aural similarities. In whatever event, OHIM had found the grade of phonetic similarity betwixt the 2 marks to hold upwards relatively low.

*The appellants were incorrect to fence that the CFI had non taken the type of goods at number into consideration. H5N1 reading of the CFI’s judgments showed that they clearly had taken this into account.

Post-sale confusion etc.

*The CFI had non erred inward taking into line organisation human relationship the fact that consumers would pay a especially high bird of attending when purchasing the CTM applicant’s proficient since they were high technology scientific discipline motor cars, too that this high bird of attending would brand confusion less likely.

*The fact that consumers mightiness pay less attending to the goods at a betoken before or after their sale does non foreclose courts from taking into line organisation human relationship the high bird of attending that consumers pay to the goods at the instant of their sale. Requiring courts to alone aspect at the lowest bird of attending that consumers paid to the goods inward inquiry would conflict amongst the withdraw to pay attending to the category of goods inward inquiry when conducting the confusion analysis.

*It would hold upwards unreasonable to aspect the authorisation conducting the comparing of marks to establish, for each category of goods, the consumer’s average amount of attending on the footing of the bird of attending which he is capable of displaying inward dissimilar situations.

*This approach did non conflict amongst the ECJ’s comments inward Arsenal v Reed regarding post-sale confusion. The Arsenal courtroom had inward no means expressed a full general dominion from which it could hold upwards inferred that, for the purposes of an assessment of the likelihood of confusion inside the important of Article 5(1)(b) of Directive 89/104 or Article 8(1)(b) of Regulation 40/94, in that place is no withdraw to refer specifically to the especially high bird of attending displayed past times consumers when purchasing a sure enough category of goods.

says that this determination has serious ramifications for those who ain merchandise marks corresponding to the names of well-known people. It is clear that the person’s advert volition produce goodness from a to a greater extent than limited orbit of protection than other marks because its well-known condition volition oftentimes give the sack whatever likelihood of confusion caused past times visual too phonetic similarity betwixt the advert too after marks.

The ECJ too refused an appeal inward Case C-173/04 P Deutsche SiSi v OHIM regarding the registrability of Deutsche SiSi's pouch for drinks. The CFI had conducted the distinctiveness analysis correctly, examining whether that shape of container was unremarkably used at present, too alone including an assay of whether it was probable to hold upwards used inward the hereafter for the sake of completeness. Moreover, the CFI had been right inward paying petty attending to the interests of competitors since its determination was based on lack of distinctiveness of the mark.