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DeutschIndustrial design infringement – case law parameters in Spain and the overall impression in consumers.
The appellant, Mr. Luís Pablo filed an appeal based on procedural infringement and an appeal limited to the points of law (Recurso de casación) against the judgment ruled by the Audiencia Provincial de Zaragoza (Section No. 5) dated July 12, 2017 favorable to Canela Joyería Artesana S.L., where it was denied the existence of design infringement. We refer below to the designs at stake: Previous design Design owned by Canela Joyería Artesana…
Rubik's cube - shape mark
On April 1996, a three-dimensional EUTM was filed in Class 28 (three-dimensional puzzles) as reproduced below. The initial Applicant (Seven Towns) did not claim any particular color and provided any description of it. The trademark was granted for registration and assigned Nº 162784 on April 1999 and subsequently renewed as well as transferred to Rubik´s Brand Ltd. On November 2006, the intervener, Simba Toys GmbH & Co. KG, filed an application for a declaration of invalidity pursuant to…
Right to privacy. Protecting houses of Security cameras which are not recording.
Judgement (Civil Order) of November 7, 2019. We feel honored for a recent judgement which recognizes a right to privacy claimed by our client which was initially disregarded by the Agencia Española de Protección de Datos (Spanish Data Protection agency) and the First Instance Courts. The perseverance and trust in our legal team were essential to make the right to privacy enforceable before the Tribunal Supremo (Highest Instance Court). The situation that brought our client to file a lawsuit…
Clothing items under the copyright protection regime: the importance of the aesthetic element.
Background of the case. The entites Cofemel and G-Star both are in the design business, the manufacturing and trade of clothes. Both are designing jeans, jumpers and shirts. In august 2013, G-Star filed a lawsuit based on intellectual property right´s infringement and unfair competition acts before the Portuguese Courts. G-Star argued that the items they produce (jeans, shirts, jumpers) should be considered as intellectual creations sufficiently original and thus they are granted protection…
The targeted public as main criteria to determine the competent Court in infringement cases
Background of the case AMS Neve is an entity based in the United Kingdom which core business is audio equipment and Heritage Audio, is an entity settled in Spain dealing with the same kind of goods. In 2015 AMS Neve filed a lawsuit against Heritage Audio before the competent Court in United Kingdom concerning an infringement claim arising from the alleged wrongful use of rights conferred by an EU trade mark and two national trademarks. AMS Neve is exclusive licensee over the concerned marks.…
The exhaustion of rights and big monopolies - requirements to undetermine the economic link and the worldwide brand image. Schweppes as exclusive licensee in Spain.
Background of the case The trademark Schweppes has its origin in United Kingdom. Initially it was registered in the name of Cadbury Schweppes (owner back in time of all the SCHWEPPES´s trademarks in all countries conforming the European Economic Area). Afterwards, Cadbury sold to Coca Cola in some territories of the EU the ownership keeping among others, Spain. Cadbury Schweppes merged into the French company Pernord Ricard, creating a new entity named Orangina Schweppes Group. This company was…
Prior right not registered - evidence of use of more than mere local significance (article 8.4 of the Regulation 2017/1001)
Background of the case The appellant, SWEMAC Innovation AB, filed an EUTM application on October 2, 2007, for the word mark SWEMAC in Class 10 and 42. The trademark was duly registered on September 4, 2003. On September 3, 2013, SWEMAC Medical Appliances AB filed a partial nullity action pursuant to Article 60.1, c) of Regulation 2017/1001. The claim was relied on the Swedish company name SWEMAC Medical Appliances AB, registered as a business as from December 12, 2007. The applicant argued that…
Café del mar - nullity based on bad faith.
Background of the case In 1978, the appellant and the interveners in the current legal proceedings, obtained a premise in Ibiza as to start a business (bar) in this same place named “Café del Mar”. In 1992, the intervener applied for the trademark registration for the first time Café del Mar. Afterwards, both parties created the legal entity and the intervener was named as Proxy-Holder as to act in the name and in representation of the legal entity. Among others, in 1999 he applied for an EUTM…
The loss of profit calculation in Copyright (databases) and trademark infringement when deleting the pictures watermark
Judgement of the Appeal Court of Barcelona. Civil Court. Legal background The claimant entity, Schibsted (a web portal aimed to the creation, management and exploitation of websites publishing advertisements, and in particular, the website Coches.net), filed a lawsuit against the entity Autodescuento because of copyright and trademark infringement and unfair competition acts. The Commercial Court nº 8 of Barcelona, ruled Judgement of 30 October 2017, considering all the claims stated in the…
The shape of a guitar to designate musical instruments: lack of distinctivness
On June 16 2010, the applicant, Gibson Brands Inc., filed an application for a tridimensional EU trademark which represented the shape of a guitar body as follows: The goods embodied in the application of the EUTM, are those in Class 9, 15 and 25. In particular is sought the protection of musical instruments (Class 15). EUIPO accepted the registration of the subject mark on July 20, 2010 under Registration No. 9179953. On October 7, 2014, a third party filed an action for a declaration of…