Legal Updates

On the 4th August Google announced a relaxation of its policy on the purchasing of trade marks in its own Adwords keyword advertising system bringing its European practice much more into line with that which it applies in the United States.

The relaxation of the Google policy follows a series of recent judgements by the European Court of Justice on the use of trade marks in keyword advertising. Although the limits of what does and does not constitute trade mark infringement in such situations is still to be fully defined, and the upcoming case of Interflora, Inc vs. Marks & Spencer Plc may shed more light on this important issue, Google has obviously taken heart from the recent judgements and the courts are slowly developing some guidelines on the interaction between trade mark law and keyword advertising which can be applied for the first time across the whole of the European Union.

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We have previously reported on the pitfalls, in various European jurisdictions, of priority claims made by companies filing patent applications relying on priority applications not filed in the companies’ own names, e.g. priority cases filed in the names of inventors. In our summary, we referred to a 2009 decision in the England and Wales High Court (Patents Court):  Edwards Lifesciences AG v. Cook Biotech Incorporated ([2009] EWHC 1304 (Pat)).

In that case, Edwards sought to invalidate Cook’s European Patent (UK) 1 255 510 protecting stent valves and claiming priority from a US patent application.  One article raised with regard to inventive step against the Cook patent had been published after Cook’s US priority application but before its PCT filing date.

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We are pleased to attach a link to an article written by Lee Curtis and Rebecca Tilbury of Harrison Goddard Foote which appears in the Oxford Journal of Intellectual Property Law and Practice.  

The article discusses the practical implications of the decision of the European Court of Justice in Copad SA v Christian Dior Couture SA. The decision concerns how brand owners can control the use of their brands through selective distribution channels in the European Union. The decision significantly strengthens the hand of brand owners and although of relevance to all trade mark owners, the decision is of particular importance to retailers.

http://jiplp.oxfordjournals.org/cgi/content/full/jpq062?ijkey=qIX93OmkMKZQmBT&keytype=ref

The concept that trade mark rights cannot be used to partition the single market is a key concept of European Trade Mark Law. There are obviously exceptions to this rule, most notably that a trade mark owner can object to the free movement of branded goods that it has put on the market, if the physical condition of the branded products have been altered or impaired in some way. However, a new exception has developed over time, in that the condition of a branded product not only covers the ‘physical’ condition of the products, but also the ‘image’ surrounding the product deriving directly from the brand itself. The case at hand is the latest in a line of such decisions, but introduces new concepts such as ‘the aura of luxury’ associated with high end branded products.

However, the decision has been worded in such a way that it impacts not only on luxury products, but all branded products and is of huge significance to any trade mark owner or retailer.

If you have any questions on the issues raised in the article please do not hesitate to contact Lee Curtis, Rebecca Tilbury or your usual HGF advisor.