intellectual property | In Principle

Trademark proprietors try to promote their brands so they become known and recognisable among customers, achieving greater distinctiveness and even repute. A famous brand is the dream of every trademark owner. But sometimes exceptional popularity proves damaging to the brand. Then the trademark can become eroded or genericised.

Some categories of goods, such as agricultural produce, foods and spirits, are valued by customers primarily because of the exceptional natural conditions of their town, region or country of origin, or because of their traditional production methods. Authorised producers use geographical indications for their products to underline this uniqueness.

Alongside the trademark, the label of a product must also identify the product itself, so that consumers know what type of product they are being offered. But in the European Union alone, there may be a dozen or more legal definitions of certain alcoholic beverages, such as cider or perry. This means that the qualitative requirements differ across various member states, presenting a huge challenge for producers, particularly when the EU policy agenda has taken up the fight against double standards for foods offered in different parts of the EU.

Commercial exploitation of the attributes of well-known, admired or distinguished persons can bring a product positive associations, build recognition, and reinforce popularity. It is a guarantee of the highest quality and reliable origin. Names and images of long-dead historical figures in particular are often found on labels and in ads for alcoholic beverages. Sobieski, Chrobry, Poniatowski, Jagiełło, Kazimierz Wielki and Pułaski gaze at tipplers from bars and store shelves, along with Chopin, Ogiński and Amundsen. Can the use of attributes of a third party, including someone who is no longer alive, constitute an infringement of personal rights, and if so, whose? And what are the legal consequences? The answers are not always obvious.

Alcoholic beverages with counterfeit trademarks are just part of the fraudulent alcoholic beverages market. Fraud can also mean giving false information about a product’s properties. Penal sanctions can be imposed on perpetrators of both types.

Designs of products or parts of products are protected if they are new and the overall impression they make differs from designs know to the public up until that time. Certain features, determined solely by the technical function of the product, are not protected. Until now there were various interpretations as to what in fact determines that a particular feature is solely a result of the product function. The issue was clarified in a recent CJEU judgment.

Ignoring industrial designs or treating them as the least important option is a thing of the past. Designs will increase in importance and therefore need to be part of the intellectual property portfolio. This was the main message at the INTA Designs Conference 2018 on 26–27 February 2018 in London.

Genuine commercial exploitation of a trademark can also be shown when a position trademark is used in combination with other graphic elements.

It is hard to assess the scale of copyright infringement when it occurs on the internet. Proving the amount of the injury is one of the challenges facing the copyright holder. Lump-sum damages can help. This issue was recently addressed by the Warsaw Court of Appeal—a good occasion to cover a few ground rules for how to proceed in cases of this type.

The new ruling by the Court of Justice on the “repair clause” gives more freedom to manufacturers of non-original replacement parts.

We devote today’s edition entirely to the cosmetics and perfumes industry, and to the intellectual property protection phenomena and processes specific to that industry.

The cosmetics industry remains one of those industries where the role of innovation cannot be overestimated. Patent law makes it possible to monopolize innovative solutions and ensure their unimpeded exploitation.