European IP Snapshot – October 2016 欧洲知产快讯 – 2016年十月

Bringing you regular news of key developments in European intellectual property law.

持续为您提供欧洲知识产权法律的关键更新。

TRADE MARKS AND PASSING OFF

商标和假冒

Combit Software GmbH v Commit Business Solutions Ltd, Case C-223/15

Combit 软件德国有限公司 诉 Commit 商业解决方案有限公司，Case C-223/15

The CJEU has considered whether it would be appropriate for an EU trade mark court to grant a pan-European injunction in respect of the use of a sign where the court considers there to be a likelihood of confusion in some Member States but not others (due to language differences). The CJEU held that the essential function of the mark is not affected in those Member States where no likelihood of confusion arises and to prohibit legitimate trade in such Member States would go beyond the exclusive right conferred by the EU trade mark. Any injunction should therefore be granted for the entire EU with the exception of those parts where it has been found that there is no likelihood of confusion (i.e. excluding English-speaking Member States in this instance).

For the full text of the decision, please click here.

For a CMS Law Now on this case, please click here.

欧盟法院已经考虑欧盟商标法庭对于在某些欧盟成员国可能导致混淆，但在其他成员国（由于语言差异）则不会导致混淆的商标，给予泛欧洲的禁令是否合适。欧盟法院认为在那些没有可能导致混淆的成员国，商标的基本功能没有受到影响，禁止在这些成员国的合法贸易将超出欧盟商标被赋予的专有权。因此任何禁令应当排除欧盟中不可能导致混淆的成员国（在这个案件中就是排除以英语为母语的成员国）。

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Trinity Healthcare Ag v EUIPO, Case T-453/15

Trinity医疗有限公司 诉 欧盟知识产权局，Case T-453/15

The EU General Court has upheld a decision of the EU Board of Appeal in finding that the figurative EU trade mark “VOGUE” for goods in Class 3, was not descriptive and was not devoid of distinctive character. The relevant public would not discern cosmetic and beauty products as “fashion products” so as to create a concrete link in the mind of the average consumer as to an essential characteristic of such products. Further, the approach of filing numerous national trade mark registrations in Europe did not in and of itself constitute evidence that the EU trade mark application was made in bad faith.

For the full text of the decision, please click here.

欧盟常设法院支持了欧盟上诉委员会的决定，即注册在商品第3类且具有多种要素的欧盟商标“VOGUE”不是描述性的，同时具有显著特征。相关公众不会将化妆品和美容产品视为“时尚产品”，以至于一般消费者形成此种产品具有显著特征的印象。此外，在欧洲提交多个国家商标注册申请的方法，并不能证明欧盟商标申请是信誉不良的。

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Globo Comunicacao e Participacoes S/A v EUIPO, Case T-408/15

Globo Comunicacao e Participacoes S/A 诉 欧盟知识产权局，Case T-408/15

The EU General Court has rejected an application to register a sound mark as an EU trade mark on the grounds that it was devoid of distinctive character. The mark consisted of a repetition of a sound which was akin to a ringtone and was represented graphically. The Court considered that the mark would be identified by the relevant public as the ringing of an alarm or telephone and that there were no nuances which could make it distinctive and the mark would be perceived by the relevant public as a function of the goods and services covered and not as an indication of their commercial origin.

For the full text of the decision, please click here.

欧盟常设法院拒绝注册一个声音商标作为欧盟商标的申请，理由是该商标不具有显著特征。该商标是由一个类似于铃声的声音不断重复而成，并通过图形化展示。欧盟常设法院认为该商标很有可能会被相关公众认为是闹钟或电话的铃声，也没有细微的差异使其易于识别，并且该商标会被相关公众认为是该商品或服务涵盖的功能，而无法作为其产品本身的提示。

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GENERAL

普通案件

Process Components Ltd v Kason Kek-Gardner Ltd [2016] EWHC 2198 (Ch)

Process Components有限公司 诉 Kason Kek-Gardner有限公司[2016] EWHC 2198 (Ch)

The High Court has ruled on the split of ownership of intellectual property (IP) rights assigned by a company in administration to two third party companies, ruling that the claimant had validly terminated the licence agreement with the defendant and that the defendant was estopped from denying that the claimant owned the relevant IP rights. In construing the agreement transferring the IP rights to the claimant as a whole, the court found that it did not operate to transfer all IP rights and rejected the claimant’s argument that a ‘common assumption’ principle should be adopted in assessing ownership. The court also concluded that a clause in the licence, which meant that it could not be shown to third parties, was either a condition of the contract or an innominate term allowing the claimant to terminate the licence immediately.

For the full text of the decision, please click here.

高等法院就一家公司向两家第三方公司的转移知识产权作出决定，判决原告有效地终止了与被告的许可协议，并且被告不得否认原告拥有相关知识产权。在整体解读将知识产权转让给原告的协议时，法院认为该协议并没有转让全部知识产权，并拒绝了原告在评估所有权时应采用“一般假定”原则的请求。该法院也认为许可协议中规定不会将其泄露给第三方的条款，是该合同的一个条件，或者是允许原告立即终止许可的无名条款。

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