Should Consumers Last Expected To Know Unusual Languages? The Cjeu Ruling Inwards The Golden Balls Case
November 26, 2018
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In its judgment of twenty Nov inward the example of Intra-Presse SAS v OHIM (the 'Golden Balls' case), the CJEU notably did non halt the seven twelvemonth merchandise grade battle betwixt the United Kingdom of Great Britain as well as Northern Ireland of Britain as well as Northern Republic of Ireland family-run fellowship Golden Balls Ltd. as well as Intra-Presse, the French organisers of FIFA’s Ballon d’Or or European Footballer of the Year Award. In a dispute concerning the registration of the give-and-take grade ‘Golden Balls’, the 8th bedchamber of the CJEU sent the example dorsum to the Office for Harmonization inward the Internal Market (“OHIM”) to hold upwards decided on 1 of the grounds of appeal at consequence inward the case, as well as has given work solid instructions on the assessment to hold upwards pursued.
Background
Baca Juga
In 2007, Gus as well as Inez Bodurs of Golden Balls Ltd., sought registration of the give-and-take grade ‘Golden Balls’ every bit a Community Trade Mark. In 2008, Intra-Presse filed opposition proceedings against the registration inward observe of their before registered Community Trade Mark ‘Ballon d’Or’. They did so on the grounds of Article 8(1)(b) as well as 8(5) of the Community Trade Mark Regulation No 40/94, at nowadays found inward Regulation 207/2009.
Under Article 8(1)(b), the ‘confusion ground’, registration may hold upwards refused if at that spot exists a likelihood of confusion on the business office of the relevant world because of the similarity betwixt the 2 merchandise marks as well as the similarity of the goods as well as services covered yesteryear them. Under Article 8(5), the ‘reputation ground’, if the after grade is similar to the before grade as well as the before grade has a reputation inward the Community as well as the Member State concerned, registration tin hold upwards refused fifty-fifty for goods as well as services non covered yesteryear the before merchandise mark, where such registration would accept unfair payoff of, or hold upwards detrimental to the repute of the before merchandise mark.
The First Board of Appeal of the OHIM held that the 2 give-and-take marks were ‘extremely similar’ [para 15]. On that reason they upheld Intra-Presse’s opposition nether Article 8(1)(b), as well as solely registered Golden Balls’ grade for goods non covered yesteryear the grade ‘Ballon d’Or’, thereby dismissing Intra-Presse’s opposition nether Article 8(5).
On appeal, the General Court of the European Union found that the signs ‘Ballon d’Or’ as well as ‘Golden Balls’ solely had a weak flat of conceptual similarity, which was non plenty to offset their visual as well as phonetic dissimilarities [para 28] to practice confusion. It also found that the signs lacked the requisite similarity for the purposes of applying Article 8(5). It hence rejected Intra-Presse’s opposition inward entirety.
Intra-Presse appealed this judgment on 3 grounds; (i) distortion of the facts inward the assessment of the abilities of the relevant public; (ii) infringement inward Article 8(1)(b) of Regulation No 40/94; as well as (iii) infringement of Article 8(5) of Regulation No 40/94.
Judgment
As regards the start 2 grounds, the Court held that it had no jurisdiction to dominion on appraisals of fact, every bit appeals to the CJEU are express to points of constabulary nether Article 256(1) TFEU as well as Article 58 of the Statute of the Court of Justice of the European Union [paras 38 as well as 63]. It accordingly found Intra-Presse’s pleas evidently unfounded as well as evidently inadmissible respectively.
Regarding the tertiary Earth of appeal, the Court reiterated its example law, notably Ferrero v OHMI, as well as stated that the flat of similarity required nether Article 8(1)(b) as well as nether Article 8(5) of the Regulation is different. For the erstwhile at that spot must hold upwards such a flat of similarity every bit to Pb to a likelihood of confusion on the business office of the relevant public. For the latter, any degree of similarity triggers an overall assessment of the possibility whether registration of the after merchandise grade powerfulness hold upwards detrimental to the reputation of the former. Included inward this assessment is whether the erstwhile merchandise grade has a reputation inward the Community as well as Member State concerned. Accordingly, the Court sent the example dorsum to the OHIM to adjudicate afresh on these matters, taking into work concern human relationship the guidance given inward the judgment.
Comment
Not quite the judgment that whatever political party wanted, the example yet serves every bit a useful reminder that the flat of similarity needed inward society to works life injury nether both Article 8(1)(b) as well as Article 8(5) is different. Notably, nether Article 8(5) whatever flat of similarity triggers an overall assessment of whether registration of the after grade would hold upwards injurious to the before mark. Integral to this assessment is the before mark’s reputation.
Of greater involvement is the parties’ argumentation concerning the linguistic capabilities of the relevant world inward relation to conceptual similarity. As the Court dismissed these grounds every bit appraisals of fact, OHIM’s findings inward this observe may hold upwards interesting. Intra-Presse argued that the General Court had erred inward constabulary yesteryear stating that prior translation of the give-and-take marks was needed before it could hold upwards recognised yesteryear the relevant world every bit conceptually similar. It added that when give-and-take marks are composed of basic words inward diverse languages understood yesteryear the public, as well as so at that spot is no ‘intellectual procedure of translation’, nor does the consumer engage inward ‘prior translation’ or ‘begin yesteryear translating’ [para 57]. It asserted that the important of those words would hold upwards at nowadays understood yesteryear the relevant public, whatever its woman parent tongue.
This example hence raises of import linguistic issues. Given the multilingual nature of citizens of the European Union, to what extent practice differences inward the linguistic communication of the give-and-take marks impact the likelihood of confusion of the relevant public? To what extent does this accept into work concern human relationship cultural differences, such every bit U.K citizens’ lesser powerfulness to beak languages, every bit compared to, say, Luxemburgish citizens? Specifically, what is the flat of linguistic cognition of the average French or British consumer? We receive got seen cases where conceptual similarity is established when the languages of opposing give-and-take marks are both official languages of the territory of the relevant consumer (Organismos Kypriakis Galaktokomikis Viomichanias v Office for Harmonisation inward the Internal Market (Trade Marks as well as Designs) (OHIM), Garmo AG, Case T-534/10, thirteen June 2012[2012] E.T.M.R. 55) as well as where German, Finnish, Dutch, Danish as well as Swedish consumers are able to empathize the English linguistic communication give-and-take ‘shark’ alongside prior translation (Osotspa Co. Ltd, established inward Bangkok (Thailand) v Office for Harmonisation inward the Internal Market (Trade Marks as well as Designs) (OHIM), Case T-33/03, nine March 2005 E.C.R. 2005 page II-00763). However, nosotros receive got non seen a example where the notion of ‘prior translation’ is discussed inward detail, or a example assessing the linguistic communication capabilities of the francophone as well as anglophone public. Here’s hoping that the example rises through the ranks as well as nosotros run into a CJEU ruling on this imminently.
Photo credit: Daily Mail
