Get A Life ... Only Thomson Did

Advocate General Jacobs gave his Opinion today inwards European Court of Justice Case C-120/04 Medion AG v Thomson Multimedia Sales Federal Republic of Federal Republic of Germany & Republic of Austria GmbH.

Medion: fourth dimension to larn a LIFE?

Medion owned the High German give-and-take rate LIFE, registered for electronic amusement goods. Thomson a leading fellowship inwards the electronic amusement goods sector, used the designation THOMSON LIFE, inwards unopen to cases equally a unproblematic give-and-take sign together with inwards other cases equally a word/figurative sign amongst the THOMSON chemical element inwards dissimilar graphic size, colouring textile or style. The Landgericht Düsseldorf dismissed Medion's merchandise rate infringement claim on the Earth that at that spot was no likelihood of confusion. Mefion appealed to the Oberlandesgericht, Düsseldorf, which stayed the proceedings together with referred to the Court of Justice for a preliminary ruling equally to whether at that spot is a likelihood of confusion inside the pregnant of Article 5(1)(b) of Directive 89/104 where a composite give-and-take or word/figurative sign (here, THOMSON LIFE) comprises a fellowship elevate followed past times an before rate (LIFE) which consists of a unmarried give-and-take amongst ‘normal distinctiveness’ together with which, although it does non shape or mould the overall impression conveyed past times the composite sign, has an independent distinctive role. The Advocate General has advised the ECJ to dominion that

"In determining whether a composite give-and-take or word/figurative sign comprising a fellowship elevate followed past times an before rate which consists of a unmarried give-and-take amongst ‘normal distinctiveness’ together with which, although it does non shape or mould the overall impression conveyed past times the composite sign, has an independent distinctive role therein is sufficiently similar to the before rate to hand ascent to a likelihood of confusion on the purpose of the populace inside the pregnant of Article 5(1)(b) of Directive 89/104, a national courtroom must base of operations its assessment on the overall impression given past times each mark, bearing inwards mind, inwards particular, their distinctive together with dominant components, the nature of the populace concerned, the category of goods or services inwards enquiry together with the circumstances inwards which they are marketed".

In other words, the IPKat says, the ECJ is maxim "just await at the respective marks and, on a global assessment, answer the enquiry of likelihood of confusion yourself". Merpel also wonders why this example should accept gone for a preliminary ruling. It's close fourth dimension national courts stopped treating merchandise rate infringement equally unopen to abstruse metaphysical concept together with simply applied it robustly to the facts of the marketplace.