Analysis: the Specsavers referral and trade mark reputation
31 January 2012
Simon Crompton, London
The referral of questions to Europe's top court on acquired distinctiveness in colour show how far the assessment of a trade mark’s reputation has expanded
Lawyers reacting to the referral today by the Court of Appeal in London in Specsavers v Asda said it was an example of how much information lawyers need to take into account in a global appreciation analysis of trade marks.
"What has been registered is now just a springboard, from which you have to look at every way in which the mark has been used," said Kirsten Gilbert of Marks & Clerk Solicitors. "What else should be considered? The selling environment, the price point, the proximity of other house brands?"
"It seems to be agreed that L'Oréal v Bellure took this too far, with its consideration of clouds and other marketing imagery," said Alex Brodie of Wragge. "But with colour the referral is very much on point. You could well ask why a registration should not even be narrowed after five years if it's only been used in one...
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