Critically assess the harmonisation of Trade Mark in European Union.

Thèmes abordés

Harmonisation of Trade Mark European Union

Résumé du document

Since it has been created in 1993,the European Union (former European Community created in 1957), which is composed of twenty five members, has always try to find the best ways to coordinate the laws which govern the whole of each member states; with a view to allowing a best policy of friendship between the members. This attempt of harmonisation is applying to different areas, such as economic, social, and cultural...
In my course work I would like to analyse more exactly how the European Union (EU) tries to harmonisation the Intellectual Property laws (IP), in particular Trade marks (TMs), which is one of the principal domains of the IP law.
To resolve this issue, I will briefly explain the reason why the European Court of Justice (ECJ) has had to reconcile free movement and IP and then explain the process of harmonisation. In Centrafarm v Winthrop , Winthrop, a company brought injunction proceedings before the Court of justice of Rotterdam against Centrafarm. It claimed that Centrafarm had infringed its rights by marketing in Holland a product, which did not originate from Winthrop itself. And before taking decision the Court requested the ECJ to give a ruling on the interpretation of the rules of the European Economic Community Treaty relating to free movement of goods. Then the Court decided that Centrafarm had infringed Winthrop's exclusive rights by dealing in similar products bearing the Trade Mark.

Extraits

[...] But with the establishment of the TM Act 1994, it became possible. Because of the change of relation between states in Europe a Treaty came into force in 1958, in order to establishing the European Economic Community .Its included the establishment of free movement of persons, goods and services, and capital. This involved the elimination of customs duties, the imposition of common tariffs and the establishment of procedure to allow coordination of the economics policies; that means that the national markets have been combined in only one market without internal frontiers, known as the Common Market. [...]

[...] In the case of contestation, each citizen of the Community can bring an appeal to the Board of Appeal of the Office (OHIM), and decisions of this Board can bring cases before the Court of Justice of the European Community, which jurisdiction to annul or alter the contested decision. Consequently to the Council Regulation (directly) and the Directive (secondly), the Community Trade mark came into effect. The OHIM, established by this Regulation commenced to accept applications on 1 January 1996. Only marks, which can have equal effect through the Community, will be accepted. [...]

[...] The First Council Directive and the Council Regulation on the Community Trade mark, which have similar concept. The Directive was adopted to approximate the Laws of the Member States Relating to trade marks. The main reason was because trade marks laws applicable in the member states contained disparities, which impeded the free movement of goods and freedom to provide services and may distort competition within the common market. In Rewe-Zentral v Bundensmonopolverwaltung fur Branntwein[8]; the plaintiff intends to import a consignment of “cassis de Dijon” from France to market it in Germany. [...]

[...] The judge dismissed the action saying that it was not infringement. But Arsenal appealed against the judge's decision. So the judge referred to the ECJ, which decided in Arsenal's favour. Although the judge did not agree with the decision he applied the ECJ guidance on the law that was that the use other than in a TM sense of a product constituted a TM infringement. BIBLIOGRAPHY Bainbridge European Union Web site UK Patent Office WIPO Web site Westlaw Centrafarm v Winthrop [1974] 2 CMLR 280 The Court of justice of Rotterdam The Trade Mark Act 1994 relating to trade marks laws in UK [4]The Trade Mark Act 1938 relating to trade marks laws in UK Re Coca Cola Co`s Application [1986] 2 ALL ER The treaty of Rome in 1958 The First Council Directive of 1988 Rewe-Zentral v Bundensmonopolverwaltung fur Branntwein [1979] ECR 649 Bainbridge p.633 Procter and Gamble Procter v OHIM (Baby-Dry) [2002] ETMR 22 Libertel Groep BV v Benelux Merkenbureau. [...]

[...] In Centrafarm v Winthrop[1], Winthrop, a company brought injunction proceedings before the Court of justice of Rotterdam against Centrafarm. It claimed that Centrafarm had infringed its rights by marketing in Holland a product, which did not originate from Winthrop itself. And before taking decision the Court[2] requested the ECJ to give a ruling on the interpretation of the rules of the European Economic Community Treaty relating to free movement of goods. Then the Court decided that Centrafarm had infringed Winthrop's exclusive rights by dealing in similar products bearing the Trade Mark. [...]