Specsavers case referred to Court of Justice of the EU
31 January 2012
Simon Crompton, London
The Court of Appeal in London has referred five questions to the Court of Justice over the role of colour in a trade mark infringement case and non-use of a mark
In an opinion in the case between optician Specsavers and supermarket Asda, Lord Justice Kitchin said the law was unclear in both areas. Two other judges agreed.
The first concerned whether a company’s enhanced reputation in a colour could be taken into consideration in an issue of consumer confusion, even though the trade mark had not been registered in colour.
And the second concerned whether use of a word mark and wordless graphic mark (pictured) together was sufficient to show use of the graphic mark.
The ruling also provided a boost for Specsavers in its battle with Asda. The optician’s appeal was allowed for trade mark infringement by taking unfair advantage (Article 9(1)(c)) in two further instances than at the High Court – for a second strap line used by Asda in the adverts under consideration, and for...
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