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Question: I make the case for prohibiting … the protection of three-dimensional (3D) and colour marks…No matter how appealing, valuable, and perhaps distinctive .....

29 Jan 2024,6:35 PM

 

Questions

  1. ‘I make the case for prohibiting … the protection of three-dimensional (3D) and colour marks…No matter how appealing, valuable, and perhaps distinctive shapes and aesthetic product features are, these signs are not meant to be protected for a virtually unlimited amount of time.’

 

Irene Calboli, ‘Non-traditional trademarks as barriers to competition, innovation and creativity: what if their protection could be effectively limited in practice?’ in G Ghidini and V Falce, Reforming Intellectual Property (Edward Elgar 2022)

 

To what extent do you agree with the abovementioned statement?

 

 

  1. ‘The Court of Justice of the EU has chosen to deprive of any practical effect the exception provided for in Article 74 (2) EU Trade Marks Regulation … requiring an additional distinctive character deprives Article 74 (2) EU Trade Marks Regulation of any practical effect, and this does not make sense. If this provision exists, it should have some effect.’

 

European Communities Trade Mark Association, ‘Position paper: what future for EU Geographical Collective Marks’ (5 February 2021) 8-9

 

To what extent do you agree or disagree with this critique of the ECJ’s case law on ‘Geographical Collective Marks?’

 

 

  1. ‘The Starbucks decision is disappointing in its conservative approach to ‘customers’. It is respectfully suggested that the decision does not satisfactorily explain why a UK intermediary is required for a UK resident to be a “customer” of a foreign business. If someone in the UK is prepared to seek out and provide custom to a foreign business it appears artificial to hold that the business has no goodwill’

 

David Brophy, ‘Case Comment: The Supreme Court decision in Starbucks (HK) v British

Sky Broadcasting: is that crazy horse still running?’ (2015) 37 EIPR 661, 665

 

Analyse the element of ‘Goodwill’ in the Law of Passing Off. Then, assess the statement

above: to what extent do you agree - or disagree - with it?

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