The Advocate General of the CJEU has recommended that the Court reject appeals filed by Helena Rubinstein and L’Oréal in disputes over Allergan’s mark for Botox, in an opinion published on February 16.
Rubinstein had registered a Community trade mark for Botolist, while L’Oréal had registered one for Botocyl.
In 2008 OHIM’s First Board of Appeal agreed with Allergan that both marks should be cancelled under Article 8(5) of the Community Trade Mark Regulation, concerning marks with a reputation.
That decision was upheld by the General Court.
Now the Advocate General has rejected the arguments made by Rubinstein and L’Oréal, in an opinion that discusses the case law on marks with a reputation. The Advocate General said: “[T]he Court of Justice has already had occasion to state that the risk of detriment to the distinctive character or repute of the mark, albeit not a necessary condition for there to be parasitism, constitutes, where it is found, a factor to be taken into consideration in determining whether or not an unfair advantage exists.”
The opinion can be read on the CJEU’s website. It is not binding on the Court, whose judgment is expected later this year.