Volume 50 (2013) / Issue 3
ECJ trade mark case law has been very rich in the past five years that are covered in this survey. While certain fundamental issues, such as the general concept of distinctiveness and descriptive character of marks as well as the assessment of likelihood of confusion were clarified already in the past, more recent decisions have elaborated on more sophisticated issues, such as the impact of trade mark functions on the scope of protection, which became relevant in particular in the context of marks being used in comparative advertisement as well as in keyword advertising. Other topics addressed in ECJ case law were, inter alia, exclusion from protection of product shapes conferring substantial value on the goods, as well as application in bad faith, infringement by goods entering the EU on transit, and the requirements for genuine use of a mark in the Community. The latter topic also figured strongly in political debates accompanying the current preparations for a major legislative overhaul of the European trade mark system. Commission proposals for amendment of the Community Trade Mark Regulation and the Trade Mark Directive were published at the end of March 2013 and will likely trigger more debates before the reform projects are ultimately concluded.
All rights reserved