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49 Cards in this Set
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Explain the differences between a collective mark and a certification mark. |
s.49 - collective mark - distinguishes g/s of members of the association which is the proprietor from those of others s.50 - certification mark - indicates g/s to which mark is applied are certified by the proprietor in respect of origin, material, mode of manufacture/performance, quality, accuracy or other characteristics |
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Describe the effect of revocation under the 1994 Trade Marks Act, |
s.46(6) - rights deemed to have ceased as from (a) date of application for revocation or (b) if court/registrar satisfied grounds for revocation existed at an earlier date, that date s.46(5) - where grounds exist only in respect of some g/s, only revoked for those g/s |
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Describe the effect of invalidity under the 1994 Trade Marks Act. |
s.47(6) - registration deemed never to have been made, provided it doesn’t affect transactions past and closed s.47(5) - where grounds exist only in respect of some g/s, only invalidated for those g/s |
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Can a Community Trade Mark be registered for ‘retail services’? |
The Board of Appeal at OHIM allowed a registration of a figurative mark for services: Giacomelli Sport (2000) “provided a comprehensible description of the service is rendered, including a reference to the field in which the service, for example "retail services in the field of sports goods" or such other fields as the case may be, the application is capable of being assessed for the purposes of Community Trade Mark Regulations 40/94 Art.7”
Confirmed by ECJ in Praktiker Markte - services provided in connection with the retail trade in goods were covered by the concept of "services" within the meaning of the Directive as long as the specification specifies the type of goods to which the service relates |
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Describe the nature of the search for prior rights conducted by the U.K. Trade Mark Office. |
In the UK, the Registrar conducts a search and examination of the application (s33?) Registrar will ensure that the application complies with s1(1) and s3 (absolute grounds). Since 1 October 2007, the Registrar will perform the prior rights search only for notification purposes - there is no objection to registration on relative grounds [brings UK into line with OHIM] Applicant will be given results and allowed to proceed, amend or withdraw. If published, owner of the earlier mark will then be notified. Owners of CTMs must ‘opt-in’. |
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What are the consequences of failure to record the assignment of a trade mark registered in the U.K.? |
No statutory obligation to register marks or transactions therewith - assignment does not have to be registered in order to be effective but there are a number of benefits (s25 TMA): - interest of the assignee survives further inconsistent transactions in relation to the mark; an unregistered document is “ineffective” against a person acquiring a conflicting interest in or under the mark in ignorance of it (s25(3)TMA) - costs in unsuccessful infringement action are witheld from assignees who do not register promptly (i.e. within 6 months of the transaction), as regards any acts of infringement that occur prior to registration; or, if it was not practicable to register the assignment within 6 months, that an application to register was made as soon as practicable thereafter. |
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Describe the test devised by the ECJ for establishing that a trade mark enjoys reputation |
General Motors v Yplon - knowledge threshold - known by a significant part of the public for the relevant g/s - factors include - market share; intensity, geographical extent and duration of use; size of investment |
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Are combinations of colours registrable as trade marks according to the ECJ? Explain your answer. |
s3(1)(a) - must be a sign capable of graphical representation - Dyson - a “sign” includes any conceivable type of sign - Sieckmann - criteria for graphic representation - Libertel - speciman, verbal desc, international colour code - Hiedelberger Bauchemie - for two colours, need to specify colours systematically arranged by associating them in a predetermined and uniform way s3(1)(b) - must be distinctive - Hiedelberger Bauchemie - Must have established prior use such that customers associate colour with a specific origin |
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Describe the test establishing sufficient use to maintain a trade mark on the Register devised by the ECJ in Ansul and La Mer Technology. |
Ansul BV v Ajax Brandbeveiliging - require use of the mark on the market for the g/s protected by that mark and not just internal use by the undertaking concerned - use must therefore relate to g/s already marketed or about to be marketed (in the form of advertising campaigns) (‘relating to’ includes after-sales service or spare components) - token use, solely to attempt to preserve rights, is not genuine use La Mer Technology v Goemar - even minimal use (not quantitatively significant) can qualify as genuine as long it is deemed to be justified, in the economic sector concerned, for the purpose of preserving or creating market share for the g/s protected by the mark |
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Describe briefly Lord Diplock’s elements of a passing off action. |
Lord Diplock - as stated in Advocaat i. a misrepresentation ii. made by a trader in the course of trade iii. to prospective customers of his or ultimate consumers of the g/s supplied by him iv. which is calculated to injure the business or goodwill of another trader (must be reasonably forseeable), and v. which causes actual damage to a business or goodwill of the trader by whom the action is brought |
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To what extent does the U.K. law of passing off protect well known personalities? Explain briefly your answer using case authority by way of illustration. |
Law of passing off prevents misrepresentation in personality merchandising i.e. celebrities or well known personalities may be able to use passing off to control the use that is made of their image and/or name, but in most cases the claimant is unsuccessful/ Important in UK case law, which currently does not recognise the ‘right of personality’ While the public does not need to believe that the personality made the goods or services, it must have thought that he or she endorsed them.
Lyngstrad v Annabas Products No relief against traders selling paraphernalia that bore the name and image of the group (ABBA). The test for passing off was whether there was a real likelihood of confusion among the public. The defendants were not doing “anything more than catering for a popular demand among teenagers for effigies of their idols”.
Irvine v Talksport There was no good reason why the law of passing off should not apply to cases of false endorsement. The claimant in a false endorsement case has to show first that at the time of the acts complained of he had a significant reputation or goodwill, and second that the actions of the defendant gave rise to a false message which would be understood by a not insignificant section of his market that his goods have been endorsed, recommended or approved of by the claimant.
Elvis Presley Trade Marks There is no reason to believe that current merchandising practice led the public to assume in all cases that products bearing the name or likeness of a famous personality would come from a particular source, i.e. from the personality himself or from his beneficiaries. |
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Can the registered proprietor of a Community Trade Mark license use of its trade mark in respect of Scotland. |
Yes under Article 22(1) of Council Regulation 40/94 a trade mark may be licensed for some or all of the goods and services for which it is registered and for the whole or part of the community. In addition, the proprietor may invoke the rights conferred by that trade mark against his licensee who contravenes any provision in his licensing contract in relation to the territory in which the trade mark may be affixed. |
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Describe the concept of seniority in the context of a Community Trade Mark Registration. |
The seniority provisions are found in Articles 34-35 of Council Reg. 207/2009. A proprieter of a national registration may claim seniority for a CTM application (same proprieter, same sign for same goods and services) If the CTM proceeds to registration, and the national registrations are allowed to lapse, the CTM is deemed to provide at a national and CTM level, the same protection as afforded by the earlier national registration. The purpose of seniority is to make the CTM more attractive to proprieters of national TMs who wish to retain their national rights. |
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Describe the concept of conversion in the context of a Community Trade Mark Registration. |
Under Articles 108-110 of the community trade mark regulation, a CTM registration or application may be converted into one or more national trade mark applications. The national trade mark applications will enjoy the date of filing or priority of the CTM. This is a fall-back position for applicants whose CTM fails on absolute or relative grounds that exist only in part of the EU. Conversion also covers any seniority claims. |
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Describe the principle of coexistence in the context of the Community Trade Mark system. |
The CTM system is designed to co-exist with the national trade mark systems. Each system confers individual and independent but interacting rights. - A CTM is granted on a first come first served basis. An earlier national right does not confer preferential rights for the CTM. A pre-existing national right can be used to block or challenge a later CTM application. - A CTM does not destroy an earlier national ™ that has not been raised against it - they co-exist. A CTM can however be used to block or challenge a later national level ™ application. |
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Describe the effect of a registration obtained under the Madrid Protocol. |
- get a bundle of national rights, applied for and administered centrally - registrability, validity, property rights and infringement determined at local level - no ‘unitary character’, cf a CTM - any differences here between the Protocol and the Agreement? |
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Explain the principle of priority under the Paris Convention as it relates to trade marks. |
Earliest international treaty concerning TMs and other forms of IP rights - 1883 Art 5 establishes priority - a 6m grace period is given for TMs from the date of first filing an application. This allows the application to file internationally while retaining the priority date of the first filing - the later filings are therefore assessed for conflicting earlier rights or publications at the priority date not the date when filing was actually affected. Rationale - stems from international exhibitions of mid-nineteenth century where exhibitors were dissuaded from attending due to people copying their exhibits. |
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Explain briefly the principle of national treatment under the Paris Convention as it relates to trade marks. |
National treatment under the Paris convention affords equal protection to nationals and foreigners of signatory member states in relation to Trade marks and trade names at the ™ registry and in the judiciary. All persons including incorporated companies enjoy national treatment as long as they have a connection to a Paris convention country whether by birth, citizenship, incorporation as well as residents and businesses with “real and effective” commercial presence. |
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Martin is a German national. He lives in the U.K. and owns a factory producing leather goods in the United States. Martin plans to use the Madrid Protocol and seeks your advice as to which country he can use as the base of his application. |
To qualify, must either: 1. have a real and effective commercial establishment in, or 2. be domicile in, or 3. be a national of a country party to the agreement. UK and US both parties to the Madrid Protocol so can use an application in either country as the base (n.b. neither party to the Agreement) (N.b. for the Madrid Agreement the cascade doctrine applies - have to apply in the first country that applies to you in the list.) |
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Martha has a trade mark registration in France and enquires whether she can use the Madrid Protocol in order to obtain an international registration in Germany. |
A Protocol international registration stems from a national application - I’m not sure if you can use a registration? (France and Germany are both parties to the Protocol and Agreement) The lecture slide says “the application is based on an existing, national registration (or also an application for registration in the case of the Protocol)” - implies that you can use either under the Protocol |
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Can a smell be registered as a trade mark in the U.K.? |
Considered in Seickmann. Seven criteria established for graphical representation: Clear, Precise, Self-contained, Easily accessible, Intelligible, Durable and Objective. Established that smells could not be graphically represented in such a was that would meet all of the seven criteria. |
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Discuss very briefly the importance of the decision of the E.C.J. in Windsurfing Chiemsee. |
(i) s3(1)(c) descriptive of geographical origin - registration will be refused if there is an established connection between the place and the product - connection is not confined to the belief that that was where the product was manufactured, but can include e.g. the fact that it was conceived or designed there (ii) relevant factors in assessing whether a mark has acquired a distinctive character: market share; intensity, geographical spread, longevity of use; amount invested in promoting the mark; proportion of the relevant class of persons who identify g/s as originating from that particular undertaking because of the mark; statements from chambers of commerce and industry |
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Discuss very briefly the importance of the decision of the E.C.J. in Philips v. Remington? |
Under s3(2)(b) cannot register a mark for a shape for which the the shape is necessary to obtain the technical result [so as to not encroach upon patent protection, which should only be for 20 years] [to prevent TMs limiting a competitor’s freedom of choice in the “technical solution” they adopt - broader than patent definition of an invention] Have to determine the ‘essential characteristics’ of a shape and then determine whether those characteristics fall within any of the s3(2) exclusions - i.e. can’t add trivial features to get around the exclusions Provided 3 step test: i) does the shape achieve a technical result? ii) was the shape chosen by the designer to do so? ii) is the shape one of a limited number that a competitor could use to achieve the function? |
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Describe briefly the test applied by the E.C.J. for determining confusion. |
LLoyd Schuhfabrik - average consumer must incorrectly assume some broad economic connection between the users of the marks - need for genuine and properly substantiated likelihood of confusion Sabel v Puma - likelihood of association is not an alternative to likelihood of confusion, but merely serves to define its scope Picasso v Picaro - confusion is assessed at the point of sale |
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Describe briefly the test applied by the E.C.J. for determining similarity between products. |
Canon v MGM - factors include: physical nature of the goods; intended use; end users; distribution channels; location in supermarkets; whether in competition; whether complimentary
The distinctive character of the earlier trade mark, in particular its reputation, has to be taken into account when determining whether the similarity between the goods or services covered by the two trade marks is sufficient to give rise to the likelihood of confusion. |
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Describe briefly the test applied by the E.C.J. for determining similarity between signs. |
Sabel v Puma - should consider degree of aural, visual and conceptual similarity - the inherent/acquired distinctiveness of the marks - attention given to distinctive and dominant components of the marks, non-distinctive elements are ignored
Muelhens v OHIM A determination of aural similarity involves looking at the syllables of the word (how many in common, length of word, first syllable).
Sir Terence Conran v Mean Fiddler Holding (Zinc/Zincbar) The ideas that lie behind the earlier mark are also assessed: The idea of the mark “Zinc” included the chemical symbol of zinc. The association between the chemical symbol and the word “Zinc” was so plain that it would constitute an infringement. |
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Describe the effect of a successful central attack under the Madrid Agreement. |
- If the base is declared invalid, revoked, surrendered or allowed to lapse within 5 years of the international registration’s grant, all other national registrations are also invalid. - Under the Protocol can transform any of the designations into ordinary national applications and will benefit from original priority date - but not available under Agreement |
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Describe the “average consumer” as defined by the ECJ in Lloyd Schuhfabrik. |
Lloyd Schuhfabrik - average consumer is reasonably well-informed and - reasonably observant and circumspect - his level of attentiveness may vary from sector to sector |
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Can a shape be registered as a trade mark in the U.K.? Explain your answer. |
Maybe just skip straight to s3(2) here... s3(1)(a) - a sign, graphic representation, capable of distinguishing Dyson - “sign” is a very broad, open and general term encompassing all conceivable types of signs, including sounds and 3D marks Sieckmann - criteria for graphic representation Sizzels Matlow’s Application - “a chewy sweet on a stick” - verbal description not enough, but drawings or photos usually OK s3(1)(b) - must be distinctive Bongrain’s Application - shapes don’t have inherent distinctive character, must acquire it through use Daimler Chrysler v OHIM - shape of Jeep grill had acquired distinctive character as customers had been educated to associate the shape with a particular undertaking s3(2) - cannot register shapes which consist exclusively of (a) the shape which results from the nature of the goods themselves (b) the shape which is necessary to obtain a technical result (c) the shape which gives substantial value to the goods Phillips v Remmington - must ask what are the essential characteristics of the shape - if those fall within s3(2), so does the whole shape - for s3(2)(b) - 1. Does shape actually achieve a tech result; 2. Was it chosen by the designer to do so; 3. is it one of a limited number that a competitor could use to achieve the result Lemon Squeezer (is this actually a case?) - for s3(2)(c) - compare price of equivalent product not made to the shape |
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Can a sound be registered as a trade mark in the U.K.? Explain your answer. |
Discussed in Shield Mark v Joost Kist. In order to be registrable, any sign must meet the Seickmann criteria for graphical representation. A score of musical notation was considered to meet the Seickmann criteria, however an onomatopoeic representation of a cockerel crowing (kuke-lekuuuuuu - v important to remember this) was found not to be precise or objective, and therefore not capable of graphical representation. Further a spectrogram of Tarzan’s call was found to be precise and objective, but not intelligible, and held to be unregistrable also. |
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Discuss very briefly the importance of the decision of the ECJ in Ralf Sieckmann v Deutsches Patent und Markenamt. |
7 criteria for graphical representation - clear, precise, self-contained, easily accessible, intelligible, durable and objective A smell cannot be represented in a way that meets all of these criteria |
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Discuss very briefly the importance of the decision of the ECJ in Arsenal v Reed. |
Use in the course of trade (pre-requisite to all infringement grounds) = use in a commercial context with a view to economic advantage The use must also affect or be liable to affect the essential function of the mark, which is to guarantee origin |
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Name the relevant period of non-use which renders a trade mark vulnerable to revocation in the U.K. and state one possible defence that a proprietor might have against revocation. |
Period of non use is 5 years. A defence to revocation for non-use is that the non-use was due to an obstacle arising independently of the will of the proprietor (Alza Corpn). |
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Under what circumstances will the use of a trade mark in comparative advertising amount to a successful defence to trade mark infringement? |
S10(6) provides that infringement provisions shall not prevent the use of a registered ™ for identifying the g/s as those of the proprietor.
To rely on the s10(6) defence a person must show that: i) ™ is used for the purpose of identifying g/s ii) use is in accordance with the honest practices in industrial and commercial matters (as determined in relation to CAD Art 4) iii) use does not, without due cause, take unfair advantage of, and is not detrimental to, the distinctive character or repute of the mark
Relevant cases: BA V Ryanair - (expensive BA---DS) found to constitute honest comparative advertising for the purposes of s10(6) and s11(2)(b). The average consumer would not be misled by price comparisons, which were sufficiently accurate, and the slogan counted for no more than vulgar abuse.
O2 v Hutchinson 3G - 3G used O2 bubbles etc. Held not to confuse or otherwise jeapardise the essential function of the ™ as an indicator of origin, and was therefore permitted. |
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Describe the scope of an exclusive licence. |
s29 - an “exclusive licence” means a licence (whether general or limited) authorising the licensee to the exclusion of all other persons, including the person granting the licence, to use a registered trade mark in the manner authorised by the licence
s31 - An exclusive licence may provide that the licensee shall have, to such extent as may be provided by licence, the same rights and remedies in respect of matters occurring after the grant of the licence as if the licence had been an assignment
N.b. s30 - A non-exclusive licensee may call upon the proprietor to take infringement proceedings in respect of any matter which affects his interests, and if the proprietor fails to do so within 2 months the licensee may bring proceedings under his own name as if he were the proprietor |
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List the transactions that are registrable under section 25 of the 1994 Trade Marks Act. |
(a) assignments (b) the grant of a licence (c) the grant of any security interest over a TM (d) the making by personal representative of an assent in relation to a TM (I haven no idea what this means) (e) an order of a court transferring a TM |
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Provide Lord Oliver’s definition of passing off. |
Lord Oliver - Jiff Lemon i. goodwill of the relevant public ii. misrepresentation in the course of trade that is likely to deceive the public iii. damage or the likelihood of damage
Classical trinity is balanced - large evidence of goodwill can compensate for little evidence of damage |
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Can the U.K. law of passing-off be used to protect fictitious characters from imitation? Explain briefly your answer using case authority by way of illustration. |
Passing off may protect fictitious characters - misrepresentation in character merchandising. Currently two conflicting decisions within case law Mirage Studios v Counter-Feat Clothing (Ninja Turtles) - misrepresentation found as the public believed the goods were genuine and licensed BBC Worldwide v Pally Screen Printing (Teletubbies) - misrepresentation NOT found as it was held that consumers would not care about the source of the T-shirts with non-licensed images and therefore could not be misled. |
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Describe the nature of the search for prior rights conducted by OHIM. |
CTM: examination system focuses exclusively on absolute grounds, but there are opposition proceedings for owners of prior rights. A search of the community register will be performed. The application will be communicated to national Offices that have declared their intention to conduct a search for prior rights. This is not an examination though - the results of the searches will simply be communicated to the applicant who can decide whether to proceed with the application or not. The application will then publish. |
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Compare the effects of a Community Trade Mark Registration with the effect of a UK registration. |
CTM - unitary, single right covers whole EU UK - covers UK |
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Describe the principle of exhaustion applied by E.U. countries. |
s12(1) - a ™ will not be infringed by its use in relation to goods that have already been put on the market in the EEA under that ™ by or with the consent of the proprietor s12(2) - unless there exist legitimate reasons for the proprietor to oppose further dealings (e.g. where the condition of the goods is changed or impaired)
Silhouette v Hartlauer - member states cannot provide for international exhaustion
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Does the UK Intellectual Property Office conduct searches for prior rights? |
S37 “Examination of Application” (1) The registrar shall examine whether an application for registration of a trade mark satisfies the requirements of this Act (including any requirements imposed by rules). (2) For that purpose he shall carry out a search, to such extent as he considers necessary, of earlier trade marks. Registrar will ensure that the application complies with S1(1) and S3 (absolute grounds).
Examination on relative grounds (i.e. search for prior rights): • Search conducted only for notification purposes • The applicant will be given the results and allowed two months to proceed as filed, amend or withdraw • If published, the owner of any similar and earlier UK marks will then be automatically notified • Community trade mark owners must request (and pay for) inclusion in IPO notification service |
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Are there any restrictions as to what can constitute a “sign” for the purpose of section 1 of the Trade Marks Act 1994? |
● S 1(2) TMA - a non-exhaustive list of signs that may be protected as TMs: ○ “A trade mark may, in particular, consist of words (including personal names), designs, letters, numerals or the shape of goods or their packaging” ● Dyson: “sign” is a very broad, open and general term encompassing all conceivable types of signs, including sounds and 3D marks ● S 3(1)(a) - must be a sign capable of graphical representation ● In order to be registrable, any sign must meet the Sieckmann criteria for graphical representation, being: i) clear, ii) precise, iii) self-contained, iv) easily accessible, v) intelligible, vi) durable and vii) objective. In addition, a representation must be sufficiently accessible and intelligible and not require excessive efforts to be taken for the public to understand it. |
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Discuss briefly the importance of the decision of the ECJ in O2 Holdings v Hutchison 3G. |
● Question referred: ○ Is the proprietor of a registered trade mark entitled to prevent the use i. by a third party ii. in comparative advertising iii. of a sign similar to his own iv. for identical or similar goods v. where there is no likelihood of confusion vi. and the essential function of the trade mark as an indicator of origin is not jeopardised? ● ECJ ruling: ○ proprietor is not entitled to prevent the above use if it satisfies all the conditions, laid down in Article 4 of the Comparative Advertising Directive, under which comparative advertisement is permitted. ○ But, where the conditions under Article 5(1)(b) of the Trade Mark Directive (use in the course of trade leading to confusion) to prevent use of a sign are met, a comparative advertisement in which that sign is used cannot satisfy the condition under which comparative advertising is permitted. ○ The proprietor may prevent the use of a sign by a third party which is identical with, or similar to, his mark under Art 5(1)(b) of the Directive (10(2) TM Act) only if the the use is i. in the course of trade; ii. without the consent of the proprietor of the mark; iii. in respect of goods or services which are identical with, or similar to, those for which the mark is registered, and iv. affects or is liable to affect the essential function of the trade mark, which is to guarantee to consumers the origin of the goods or services, by reason of a likelihood of confusion. |
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Discuss briefly the importance of the decision of the ECJ in L’Oreal v Bellure. |
“… the use of a competitor’s trade mark in comparative advertising is permitted by Community law where the comparison objectively highlights differences and the object or effect of such highlighting is not to give rise to situations of unfair competition, such as those described inter alia in Article 3a(1)(d), (e), (g) and (h) of Directive 84/450.”
Turning to Art. 3a(1)(h) the Court found that “it is not only advertisements which explicitly evoke the idea of imitation or reproduction which are prohibited, but also those which, having regard to their overall presentation and economic context, are capable of implicitly communicating such an idea to the public at whom they are directed”.
“ … an advertiser who states explicitly or implicitly in comparative advertising that the product marketed by him is an imitation of a product bearing a well-known trade mark presents ‘goods or services as imitations or replicas’ within the meaning of Article 3a(1)(h). The advantage gained by the advertiser as a result of such unlawful comparative advertising must be considered to be an advantage taken unfairly of the reputation of that mark within the meaning of Article 3a(1)(g)”.
“Any suggested rule of law which stands in the way of people telling the truth, whether the context be political, commercial or otherwise, ought to be scrutinised with care and only justified on the grounds of strict necessity.” |
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Discuss briefly whether it is possible to have goodwill in advertising techniques and themes under the law of passing off in the U.K. |
A trader may have goodwill associated with particular advertising techniques or slogans. The defendant may be liable for passing off if he uses techniques or slogans that are similar to those which are used by the claimant.
Cadbury Schweppes v Pub Squash Passing off is wide enough to encompass descriptive material such as slogans or visual images, which advertising could lead the market to associate with the plaintiff's product provided that such material has become part of the goodwill of the product. The test is whether the product has derived from the advertising a distinctive character which the market recognises.
easyJet v Dainty It was not the word “easy” on its own that was protected, but the word in its distinctive get-up. |
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Explain briefly whether reputation alone is sufficient in order to establish goodwill under the law of passing off in the UK. |
There are two lines of cases:
Maxim’s v Dye: Reputation sufficient for goodwill. A business could have goodwill in this country although based on trading carried on abroad. Due to the global nature of markets, “existence and extent of the plaintiff's reputation and goodwill in every case is one of fact”. The plaintiff’s existing goodwill in the UK “may be regarded as prospective but none the less real in relation to any future business which may later be set up by the plaintiff in this country”.
Anheuser-Busch v Budejovicky Budvar Narodni Podnik: Reputation not sufficient for goodwill. Where a trader only has a reputation in the UK, they will not have the goodwill to justify an action for passing off – business must be carried on in the UK. |
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Describe briefly the U.S. stages of distinctiveness. |
● Generic: cannot serve as a trade mark (e.g. linoleum) ● Descriptive: can serve as a trade mark only if it acquires a secondary meaning (e.g. Windows for windowing software) ● Suggestive: inherently distinctive (e.g. Microsoft – suggestive for software for micro computers) ● Arbitrary: also inherently distinctive (e.g. “Black and White” for whisky) ● Fanciful: inherently distinctive (e.g. Exxon, Kodak, Xerox) |
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Describe briefly the test applied by the ECJ for determining identity between the signs. |
“a sign is identical with the trade mark where it reproduces, without any modification or addition, all the elements constituting the trade mark or where, viewed as a whole, it contains differences so insignificant that they may go unnoticed by an average consumer who is deemed to be reasonably well informed, reasonably observant and circumspect.” |
