Have you ever seen two less likely allegedly similar marks?
by Jeremy Phillips, at IPKat
Although he is generally reluctant to criticise individual IP rights owners for seeking to protect their market position, and equally reluctant to criticise those members of the IP professions who represent them, there are times when the temptation to do so becomes very great.
One such occasion when the temptation became fairly strong was today, however, when on reviewing the recent crop of appeals to the Court of First Instance of the European Communities regarding Community trade mark law he came across Case T‑162/08, Frag Comercio Internacional, SL v Office for Harmonisation in the Internal Market, Tinkerbell Modas LTDA.
Tinkerbell applied to register as a Community trade mark the sign on the right. Frag opposed, citing a likelihood of confusion with the mark on the left, on account of their similarity and the identity or similarity of its goods to the goods and services for which Tinkerbell had applied to register its mark. If you look very carefully you can just about see the words "by missako" in a scribbly sort of script at the bottom of Tinkerbell's sign.
The Opposition Division, the Board of Appeal and the Court of First Instance were all united in considering that the respective sign and mark were not hugely similar. The miracle is that it took the Court some 22 paragraphs of patient, formulaic judgment to explain that the marks were dissimilar.
The IPKat has seen some dissimilar marks touted as being similar over the years, but he doesn't think he has ever seen so egregious a case of dissimilarity as this. In case he was mistaken, he took the trouble of showing the pair of them to some friends and colleagues, each of whom was totally puzzled as to how anyone could have thought them similar. Merpel adds, what's also annoying is that Frag applied to the court to reject the application for registration, even though this plea has been ruled inadmissible in a string of cases going back many years. She feels that this exercise was a waste of someone's time, effort and money and hopes that futher appeals to the Court of Justice, the United Nations and the Celestial Tribunal will not be forthcoming.
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About Jeremy Phillips, in his own words.
I graduated from the University of Cambridge (Clare College) with a BA (Law) in 1973 and earned my PhD from the University of Kent at Canterbury in 1977 for my thesis on the allocation of intellectual property rights between employers and employees. From 1975-1976, while I was writing up my thesis, I was a Special Fellow at the University of California at Los Angeles (UCLA).
I have taught law full-time at Trinity College Dublin (1976-1980), University of Durham (1980-1984) and Queen Mary (1984-1987), returning to Queen Mary in 1991-1992 as Herchel Smith Senior Research Fellow. More recently, from 2003 to 2006, I was Professorial Fellow at the Queen Mary Intellectual Property Research Institute.
In addition, I spent two years as Managing Director of the publishing house that founded Trademark World, Patent World and Copyright World. I also launched Managing Intellectual Property magazine, which I sold to Euromoney Publications in 1991. Between 1992 and 1996 I was Registrar of the Court of the Chief Rabbi.
