Conceptual confusing similarity and pictorial trade marks

Several high-profile rebrands, including those by Twitter and Starbucks, have involved removing text from logos. This move towards wordless, pictorial trade marks raises a difficult question about how the scope of protection of a registered trade mark should be determined. This article examines the particular issue of how much weight should be given to the idea or concept underlying a pictorial mark when assessing whether a defendant’s junior mark is ‘confusingly similar’. Drawing on legal principles and case examples from Europe, the United Kingdom, Singapore and New Zealand, it is claimed that courts and adjudicators should be careful not to overweight conceptual similarity. It is argued that a lack of care in assessing conceptual similarity risks awarding one trader overbroad protection, which may be tantamount to conferring on one trader a monopoly in an idea. A lack of care may also undermine the logic of a registration system by untethering protection from what is recorded on the Register, and may make trade mark law less predictable and certain. * The author declares that he was junior counsel in a case discussed in this article, Carabao Tawandang Co Ltd v Red Bull GmbH HC Wellington CIV-2005-485-1975, 31 August 2006. The views represented in this article are the author’s own, and do not reflect the views of his employer at the time, or the views of the client represented in that particular case.

Trade Mark Found Misleading for Suggesting a Continuity with the Tradition of the Previous Owner

Pauscha

Accounting of goods in pharmacies

Pharmacies belong to the category of wholesale and retail trade, but their goods are of high importance for the population, since they allow you to maintain or correct an important quality of a person — health. The implementation of operations for the movement of a wide range of medicines and medical products from suppliers through pharmacies to end-users at the same time differs in its similarity when reflected in the accounting process. Differences are observed in the approaches to setting a trade mark-up for each category of goods, depending on the frequency of purchases, or assigning them to a price segment. The exception to the rules for setting the price is vital medicines, for which the maximum price is set by the state. But the accounting of these pharmacy products also has the same mechanism as the goods without restrictions in the margin. In this case, the object of VAT taxation appears, the accounting of which has its own specifics, depending on the applicable tax regime.

COMPARISON OF THE PROPERTIES OF TREAD RUBBER FOR WHOLE WITH METAL CORD HEAVY-DUTY TIRES BASED ON NR AND ON SYNTHETIC POLYISOPRENE SKI-3 OF VARIOUS BRANDS

Technological properties of rubber compounds as well as viscous-elastic and strength properties of the tread rubber for heavy-duty tires whole with metal cord (MCT), based on blends of natural (NR) or synthetic polyisoprene of various trade marks (more than 80 %) and polybutadiene (more than 10 %) were studied. The new processing aid (PA), worked out in LLC «NPP QUALITET» under registered trade mark KVALISTROL® A100, was suggested instead of importing analogous of PA Polyplastol 6 type. It was established that replacement of NR in MCT formulation by the SKI-3S rubber produced with the use of a new anti-agglomerator of a crumb of KVANTISLIP® of the BM-2R, PA A100 brand, increased dosage of sulfur-accelerated group and the corrected dosage of the vulcanization inhibiter Santogard PVI and together with the worked out mixing mode at a stage of production of masterbatch allows to receive rubber compound close to reference on the basis of the NR on viscosity. At the same time the new rubber compound's strength and elastic properties practically don't differ, and in the lowered values of a hysteresis, surpass reference rubber compound with NR use.

Protecting Trade Mark Proprietors Against Unfair Competition in EU Trade Mark Law

With aims of protecting trade mark proprietors against commercial practices of third parties that could hinder the use of the trade mark in informing and attracting customers, negatively influence its selling power, or exploit its attractive force, the EU legislator and the Court of Justice of the EU (CJEU) have broadened the protection afforded under trade mark law to cover such acts. At the same time, the CJEU has sought appropriate balance between the exclusive rights of trade mark proprietors and the interests of third parties, in allowing those practices that can be deemed acceptable as part of fair competition. The author argues that, in consequence, EU trade mark law is becoming ever more an EU law of unfair competition with regard to practices that involve the use of trade marks. The article represents an attempt to explain these developments by looking at specific policy choices and decisions of the CJEU on the protection of trade marks, alongside the wider context of EU law dealing with unfair competition. A key conclusion is that, in light of the lack of harmonisation of unfair competition law in the EU (at least pertaining to practices that affect businesses), the widening of the scope of protection under trade mark law helps to ensure the necessary degree of harmonisation while avoiding a parallel system of protection. When compared to pre-existing EU instruments of unfair competition law that prohibit certain uses of trade marks, this approach provides trade mark proprietors with a more efficient mechanism for enforcing their rights. In the course of elucidating this finding, the article gives the reader an understanding of how EU law addresses the protection of the commercial value of trade marks.

Discovering the Value of Liberty in Intellectual Property Adjudication: A Methodological Critique of the Reasoning in Discovery Ltd v Liberty Group Ltd 2020 4 SA 160 (GJ)

This article discusses the recent decision in Discovery Ltd v Liberty Group Ltd 2020 4 SA 160 (GJ), which concerned a claim of trade mark infringement in terms of sections 34(1)(a) and 34(1(c) of the Trade Marks Act 194 of 1993 and unlawful competition on a developed reading of the common law. This article argues that the court arrived at the correct conclusion by the incorrect means and failed to adequately construe the array of constitutional interests and considerations that pertained to the matter on the facts. Further, the lack of clarity on the appropriate constitutional port of entry for the judicial enquiry unnecessarily leaves future courts guessing regarding the correct methodology to employ in cases where intellectual property rights are asserted in opposition to constitutional rights and interests. It is argued that the transformative impetus of section 39(2) of the Constitution of the Republic of South Africa, 1996, as well as numerous substantive constitutional provisions are undermined when courts neglect to anchor judicial reasoning in the constitutional context and merely apply a constitutional veneer to whatever outcome has already been reached. Accordingly, we argue that courts are under a general obligation to root all adjudication in constitutional norms and method, which, we submit, secures a thicker concept of the value of liberty than has been produced in this decision.