Bjornekulla Fruktindustrier Aktiebolag v Procordia Food Aktiebolag Case C-371/02 (blogged past times the IPKat, xiii November) was a reference to the European Court of Justice for a preliminary ruling past times the Svea Hovratt, Sweden, on an appeal from the Stockholm District Court (reported inward [2002] ETMR 464). Swedish fellowship Procordia owned the BOSTONGURKA merchandise rank for chopped pickled gherkins. Another Swedish company, Bjornekulla, which produced pickled gherkins, picked beetroot together with similar items, sought revocation of the BOSTONGURKA mark, claiming it had lost its distinctive graphic symbol together with was right away a generic term for chopped pickled gherkins. To back upwards its argument, Bjornekulla submitted 2 consumer studies which showed that the bulk of persons interviewed believed that the term "Bostongurka" could survive freely used to depict whatever construct of pickled chopped gherkins. Procordia submitted its ain report, based on the trade, showing that one-half of those interviewed recognised the BOSTONGURKA rank every bit a merchandise rank for pickled chopped gherkins. The revocation adapt was dismissed since Bjornekulla failed to present the rank had lost its distinctive character. Bjornekulla appealed: if the public's perception of the rank was decisive inward assessing whether a rank could survive registered together with whether a opportunity of confusion probable to institute the infringement of the rank existed, the same was truthful for revocation. Procordia disagreed: the relevant public, it said, consisted of those involved inward the marketing of the product. The courtroom so decided to remain proceedings together with referred the interrogation to the ECJ.
In his Opinion, Advocate General Leger advised the ECJ that Article 12(2)(a) of the harmonisation directive, Directive 89/104, requires that, inward guild to determine whether a rank had instruct a mutual cite inward the marketing of a production for which that rank was registered, together with then that its possessor was at opportunity of losing his rights over that mark, a global appreciation had to survive made both from the indicate of stance of the consumers or halt users every bit from the viewpoint of the businesses which marketed those goods or services.
If this Opinion is accepted past times the ECJ, the IPKat is curious to know how case courts volition apply it inward situations inward which, both with consumers together with inward merchandise circles, at that spot is but about identification of the disputed rank every bit beingness a merchandise rank but the preponderant bulk inward each example regard it every bit a generic term.
Advocate General Leger's Opinion here in French, German, Italian, Portuguese together with Finnish
Original BOSTONGURKA gherkins here
Other pickled gherkins here, here and here
In his Opinion, Advocate General Leger advised the ECJ that Article 12(2)(a) of the harmonisation directive, Directive 89/104, requires that, inward guild to determine whether a rank had instruct a mutual cite inward the marketing of a production for which that rank was registered, together with then that its possessor was at opportunity of losing his rights over that mark, a global appreciation had to survive made both from the indicate of stance of the consumers or halt users every bit from the viewpoint of the businesses which marketed those goods or services.
If this Opinion is accepted past times the ECJ, the IPKat is curious to know how case courts volition apply it inward situations inward which, both with consumers together with inward merchandise circles, at that spot is but about identification of the disputed rank every bit beingness a merchandise rank but the preponderant bulk inward each example regard it every bit a generic term.
Advocate General Leger's Opinion here in French, German, Italian, Portuguese together with Finnish
Original BOSTONGURKA gherkins here
Other pickled gherkins here, here and here
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