Journal Article

Coexistence in Community trade mark disputes: conditions and implications

Arnaud Folliard-Monguiral

in Journal of Intellectual Property Law & Practice

Volume 1, issue 11, pages 703-713
Published in print October 2006 | ISSN: 1747-1532
Published online September 2006 | e-ISSN: 1747-1540 | DOI: https://dx.doi.org/10.1093/jiplp/jpl142
Coexistence in Community trade mark disputes: conditions and implications

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Legal context. A defence based on coexistence has no legal basis in the Trade Mark Directive or in the Community Trade Mark Regulation. Still, a practical approach to Community trade mark conflicts requires attention to the situation in the marketplace where conflicting marks may be shown to coexist without any current confusion or dilution being reported.

Key points. Trade mark coexistence may sometimes be persuasive, the strict requirements being laid down by the Community courts. Through a detailed review of the case-law of the Community courts and OHIM's Boards of Appeal, this article explains the conditions for and the consequences of proving the coexistence of the conflicting marks in cases based on likelihood of confusion or dilution.

Practical significance. Consideration must also be given to the effects of third parties' neighbouring marks which may diminish an earlier mark's distinctive character. Accordingly, this article further addresses the issue of whether the scope of protection of a mark may be damaged by the use of later marks in the light of the ECJ Judgment in the preliminary ruling Case C-145/05 Levi Strauss v Casucci Spa.

Journal Article.  8223 words.  Illustrated.

Subjects: Arbitration ; Intellectual Property Law

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