Feeds

LastMinute.com wins right to block last minute trade mark

Court of first instance' last minute ruling

High performance access to file storage

Online travel company LastMinute.com has won the right to have a competing firm's European trade mark cancelled. The European Union's Court of First Instance (CFI) has backed the British firm, overturning a ruling by the EU office for trade marks.

LastMinute.com objected to a European trade mark registration for the term Last Minute Tour by an unrelated company. Last Minute had itself been refused a European trade mark in 2000 because the term was said not to have distinctive character.

LastMinute.com appealed that decision and said that its UK trade mark rights were infringed by the Community Trade Mark Last Minute Tour.

The Office for Harmonisation in the Internal Market (OHIM), which rules on European trade mark disputes, had said that Last Minute Tour trade mark was not invalid because the two trade marks had different audiences.

"[OHIM ruled that] the public with regard to which the analysis of the likelihood of confusion was to be made was composed of average consumers of the goods and services residing in the United Kingdom who are reasonably well informed and reasonably observant and circumspect," said the CFI ruling.

The CFI disagreed with the basis of this decision, saying that OHIM had wrongly identified the body of people whose perceptions should be judged.

"It is clear from the national case-law that in an action for passing off the misleading nature of the representation of the defendant’s goods and services must be assessed with regard to the claimant’s customers and not to the abstract notion of the average consumer adopted by the [OHIM] Board of Appeal," it said.

"The Board of Appeal disregarded the reference made by Article 8(4) of Regulation No 40/94 to the law of the United Kingdom, applicable to the earlier non-registered national trade mark 'LastMinute.com' used by the applicant in the course of business on the date on which the application for the Community trade mark was filed," it ruled.

LastMinute.com also argued that trade marks could earn their own reputation even if they are made up of generic words, and that someone else using those words can be guilty of 'passing off' their goods or services as the trade mark owner's.

The company said that the OHIM Board of Appeal had looked at its trade mark outside of its factual context.

The CFI said that OHIM had also erred in judging this issue. "The Board of Appeal could not … refuse to attribute to the expression ‘last minute’ an independent reputation solely because of its generic character and its absence of distinctive character in relation to the services at issue and the complementary goods," it said.

The CFI annulled OHIM's decision and asked it to re-examine the case.

See: The ruling

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

High performance access to file storage

More from The Register

next story
Android engineer: We DIDN'T copy Apple OR follow Samsung's orders
Veep testifies for Samsung during Apple patent trial
Did a date calculation bug just cost hard-up Co-op Bank £110m?
And just when Brit banking org needs £400m to stay afloat
One year on: diplomatic fail as Chinese APT gangs get back to work
Mandiant says past 12 months shows Beijing won't call off its hackers
MtGox chief Karpelès refuses to come to US for g-men's grilling
Bitcoin baron says he needs another lawyer for FinCEN chat
EFF: Feds plan to put 52 MILLION FACES into recognition database
System would identify faces as part of biometrics collection
Big Content goes after Kim Dotcom
Six studios sling sueballs at dead download destination
Alphadex fires back at British Gas with overcharging allegation
Brit colo outfit says it paid for 347KVA, has been charged for 1940KVA
Jack the RIPA: Blighty cops ignore law, retain innocents' comms data
Prime minister: Nothing to see here, go about your business
Singapore decides 'three strikes' laws are too intrusive
When even a prurient island nation thinks an idea is dodgy it has problems
Banks slap Olympus with £160 MEEELLION lawsuit
Scandal hit camera maker just can't shake off its past
prev story

Whitepapers

Mainstay ROI - Does application security pay?
In this whitepaper learn how you and your enterprise might benefit from better software security.
Five 3D headsets to be won!
We were so impressed by the Durovis Dive headset we’ve asked the company to give some away to Reg readers.
3 Big data security analytics techniques
Applying these Big Data security analytics techniques can help you make your business safer by detecting attacks early, before significant damage is done.
The benefits of software based PBX
Why you should break free from your proprietary PBX and how to leverage your existing server hardware.
Mobile application security study
Download this report to see the alarming realities regarding the sheer number of applications vulnerable to attack, as well as the most common and easily addressable vulnerability errors.