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ECJ trademark ruling deals blow to ‘lookalike’ products
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ECJ trademark ruling deals blow to ‘lookalike’ products

EU Trade Mark Protection Just Got Wider; Look-Alikes and Comparative Advertising now in doubt: L’Oreal vs Bellure

A recent European Court judgment has radically strengthened registered trade mark protection in Europe. Look-alike products and certain types of comparative advertising are now much more likely to be held to be an infringement of trade mark.

Even though nobody is confused or misled, you may now get into deep trouble if:

  • The get-up of your product or its packaging copies the market leader
  • You use comparative advertising (“If you like Acme Products, you’ll love Me Too Product’s version” or “Acme Products price £X, Me Too Products price £Y)

These may now be held to be trade mark infringements by reason of taking “unfair advantage of the distinctive character or repute” of a registered trade mark.

There is no need to prove confusion, detriment to the trade mark or financial loss to the trade mark owner. Good news for brand owners, bad news for “me too” competitors. The approach is much closer to the Benelux interpretation of trade mark law and German notions of unfair competition and very much against the current approach of the UK courts, which will now be forced to follow the ECJ decision.

To read EMW Picton Howell LLP's summary of this ECJ judgement, click here.


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