Protection of Brands

Question 1

Unfair Advantage

Answer 1

By reason of a transfer of the image of the mark to D’s goods, there is an exploitation on the coat tails of the mark with a reputation.

Requires a global assessment including degree of distinctiveness, reputational strength, similarity between marks, mental linkage.

Question 2

Dev Gangjee on Unfair Advantage under Art 5(2)

Answer 2

Prohibiting conduct that allows D to benefit from someone else’s brand image and reputation, regardless of any harm to the image, the court has in effect recognised the brand as an independent object of proprietary rights.

Question 3

Understanding of Brands: Lockean?

Answer 3

EU: Skill, time and effort into creating a brand (very producer centric, a passive relevant public)

Not true: brands a two-way process - Coke! ‘iconic brands are ideological parasites’

Question 4

Understanding of Brands: Stable enough?

Answer 4

The brand image is portrayed as something bounded and stable enough to be appropriated.

No C need ever prove brand image transference - merely based on a suspicion that one mark will bring another to mind and that this is pilferage.

Question 5

Understanding of Brands: Reputation

Answer 5

Must be quantitative (guidance: visibility, consumer awareness)
However, qualitative (i.e. the nature of brand image) has little guidance

Imagery is presumed.