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Wednesday, 25 May 2005

SPA CASE FALLS FLAT ON THE FACTS

No monopoly for Spa Monopole

Also posted today is the Court of First Instance decision in Case T-67/04 Spa Monopole v OHIM, Spa-Finders Travel Arrangements Ltd. Spa-Finders applied to register the words SPA-FINDERS as a Community trade mark for printed publications (Class 16) and travel agency services (Class 39). Spa Monopole opposed under Art.8(5) of Regulation 40/94, citing its earlier German and Benelux marks SPA and LES THERMES DE SPA for various good and services and maintaining that the applicant's mark would take unfair advantage of the repute of its earlier marks or would be detrimental to their distinctive character. The Opposition Division rejected the opposition; the Board of Appeal dismissed Spa Monopole's appeal and, today, so too did the Court of First Instance. Spa Monopole's case was lost principally because of the weakness of its evidence. For the most part, it was unable to prove that its earlier marks had any reputation; nor could it prove "free riding" or use that was detrimental to its distinctive character.

The IPKat thinks the CFI got it right this time. This was really a weak case. If unfair advantage or detriment are argued, you have to be able to get the tribunal to empathise with you. If you can't persuade them to share your sense of outrage, you know you've lost.

1 comment:

Ilanah said...

Oh Jeremy, you haven't discussed the actual dilution issue. The CFI said basically that real probability (or words to that effect) of unfair advantage/detriment were necessary in the circumstance, but I think it might have been limiting its comment to oppositions to registration - it's not entirely clear though.

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