In Tivo Inc v Vivo International Corporation Pty Ltd, the Federal Court has ordered that the registration of the VIVO mark be cancelled and that the mark be removed from the register. Among other things, the court found that, as of the filing date of the application for VIVO, extensive references to the TiVo products in Australian media and entertainment sources were such that the TIVO mark had acquired a reputation in Australia.
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The Swiss Federal Supreme Court has affirmed a decision of the Commercial Court of Zurich in which the latter had invalidated several YELLO marks on the grounds that the owner had essentially tried to “block” the use of the sign for all goods and services. As this is a common practice among trademark owners, the decision may have far-reaching consequences.
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The Intellectual Property Court has upheld decisions of the Taiwan Intellectual Property Office and the Ministry of Economic Affairs finding that the trademark BAO MA in Chinese characters (and ‘knight riding a horse’ device), which covered goods in Class 18, was confusingly similar to an earlier trademark consisting of a ‘knight riding a horse’ device, also for goods in Class 18.
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In Feng Shen Technology Co Ltd v OHIM, the General Court has annulled a decision of the Fourth Board of Appeal of OHIM in which the latter had found that Jaroslaw Majtczak had not acted in bad faith when filing his application for registration of the FS mark. This case shows that the ‘bad faith’ analysis under Article 52(1)(b) of the Community Trademark Regulation is subjective.
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Since December 2011 non-use issues are being examined in court. Previously, genuine use of a trademark had to be proved before the Patent Office – specifically, its Chamber of Patent Disputes. The decision to examine non-use issues in court may be regarded as a transitional measure on the way to the creation of the IP court.
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In Kallamni v Khan, the TTAB has cancelled a registration for a mark which had been registered under Section 44(e) of the Lanham Act and was based on a corresponding registration in the European Union. The TTAB found that, at the time the registration was issued, the respondent did not have a bona fide and effective industrial or commercial establishment in the European Union to support a registration under Section 44(e).
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In Certmedica International GmbH v OHIM and Lehning entreprise v OHIM, the General Court has partially annulled a decision of the Second Board of Appeal in which the latter had declared that the trademark L112 was invalid for “pharmaceutical and veterinary preparations; medical products for internal use; food supplements for medical purposes” based on the earlier trademark L.114 for “pharmaceutical products”.
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In New Balance Athletic Shoe Inc v Dajee NO, the Supreme Court of Appeal has dismissed New Balance’s appeal against a decision of the registrar of trademarks to expunge the marks P-F FLYERS and P-F on the grounds of non-use. Among other things, the court noted that the evidence provided by New Balance did not include any invoices or delivery notes recording purchases or receipt of stock that was claimed to have been sold under the marks.
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The specialised IP Court has cancelled the trademark AG (and device), registered in the name of Turkish textile company AG Tekstil, holding, among other things, that the mark belonged to Adriano Goldschmied LLC. The court stated that Tekstil’s use of the same calligraphy as that used in Goldschmied’s trademark, which was not registered in Turkey, should be considered as an indication of bad faith.
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Advocate General Mengozzi has delivered his opinion in Helena Rubinstein SNC v OHIM following an appeal against the decision of the General Court of December 16 2010. The advocate general confirmed the General Court’s finding that the marks BOTOLIST and BOTOCYL would take advantage of the distinctiveness and reputation of the earlier BOTOX marks.
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