Confusion about the public when is it relevant关于公共混乱时，它是相关的.ppt

Confusion about the public:when is it relevant?  BMM – Annual Meeting Alicante 16 October 2009 Tjeerd Overdijk VONDST Advocaten The problem (1): Watches of the mark XX are well-known among wealthy consumers? among the general public? For assessing notoriety, confusion etc.: should we look at wealthy consumer and/or general public? The problem (2): The profile of bicycle tyres V are claimed to be distinctive sign of origin among professionals in the trade? among the general cyclists? For assessing distinctiveness: should we look at the informed professional in the trading channels and/or general public? The problem (3): The brand of a new pharmaceutical drug YY is (is not) confusing for the end users / patients? the doctors and/or pharmacists? For assessing distinctiveness, notoriety, confusion etc.: should we look at end users and/or medical profession? The general issue: The ‘public’ addressed by a trade mark is often multiform – different groups of addressees: end consumers; traders; other professionals; different territories; different languages; Between these groups a trade mark may or may not fulfil its function(s), or fulfil its functions in a different manner; How do we make the assessments which must take into account “the public”? When is the public ‘relevant’ public? When does the issue arise? Is the sign a trade mark? Distinctiveness (incl. acquired distinctiveness, mark turned generic) (3, 12 HD; 7, 50(1)b CTMR); Genuine use (12(1) HD; 50(1)a CTMR); Notoriety (5(2) HD; 9(1)c CTMR); Liability to deceive or mislead (3g, 12(2)b HD; 7(1)g CTMR); Confusion (4(1)b 5(1)b HD); 9(1)b CTMR); Advantage or damage (5(2) HD; 9(1)c CTMR) . The rules: HD, CTMR, BIPC: “the public”; “in the trade”; Why should public be ‘relevant’? ‘Relevant public’ = invention of the courts; First mention of ‘relevant public’?  The rules – genuine use There is ‘genuine use’ of a trade mark where the mark is used in accordance with its essential function (