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Critically discuss the judgement of the European Court of Justice in L'…

- - - - In some countries, the protection conferred extends beyond that specified in the international provisions to include dilution of another traders indications (a form of free-riding, slavish imitations, and misleading advertising.
        
        During the 1970s and 1980s the development of case law on passing off appeared to herald the judicial recognition of unfair competition.
        
        This judicial tendency was subsequently reversed in Cadbury Schweppes v Pub Squash and...
        
        ... the approach echoes by a strong judgement by the Court of Appeal in L'Oreal v Bellure
        
        Jacob LJ: recognition of such a rule was unnecessary, undesirable, and inappropriate.
        
        Unnecessary = the UKs obligation under Article 10bis of the Paris Convention required no more than a prohibition of deceptive conduct.
        
        Undesirable = competition was not only awful but the mainspring of the economy, because there are difficulties devising a clear rational line between fair and unfair , and because the tort would create considerable uncertainty.
        
        Inappropriate = for the courts to legislate into existence new categories of intellectual property rights.
- - - - Under section 5(3) the tribunal must assess whether the marks are 'sufficiently similar that the average consumer will make a link between them' (Addidas v fitnessworld). Without this link, there can not be the cross-pollination needed to transfer value.
        
        In Intel Corp, the CJ suggested a multi-factor approach to determining whether a link would be made.
        
        degree of similarity between the marks
        
        degree of similarity between the goods or services
        
        the strength of the earlier mark's reputation and its distinctive character
        
        Must be shown that the use of the later mark either:
        
        is detrimental to the distinctive character of the earlier trade mark
        
        is detrimental to the reputation to the trade mark
        
        Court of Justice: "... when the goods or services for which the identical or similar sign is used by the third party may be perceived by the public in such a way that the trade marks power of attraction is reduced. The likelihood of such detriment may arise in particular from the fact that the goods or services offered by the third part possess a characteristic or quality which is liable to have a negative impact on the image of the mark"
        
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        takes unfair advantage of the earlier trade mark
        
        Intended to enable a trade mark owner to prevent another trader from registering (or using) a similar mark when to do so would involve parasitism or taking a free-ride on the reputation of the earlier mark.
        
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        Additionally, in the UK at least, the intention of the later user is also regarded relevant when establishing whether there will be a link.
        
        The Court of Appeal noted with seeming approval that Lewisham J had considered the appearance of the products, the public reaction, and the intention of the designers.
        
        where the packaging was intended to convey the message' this is a it like...', the court agreed that it was only a small step for the tribunal to conclude that the designers had succeeded and thus the signs were similar enough to create a link.
- - - - Although Jacob LJ explicitly said that the answer should be no, the CJ took a contrary view.
- - - - "First and most generally, I am in favour of free-speech - most particularly when someone wishes to tell the truth. There is no good reason to dilute the predilection"
      - "CJ's decision means that poor consumers are the losers"