It's at Alderman's Company Limited (Hereafter referred to as Alex) Sue Tesco Stores LTD (Hereinafter referred to as Tesco) (Lidl Great Britain Ltd v Tesco Stores Ltd) In the case, British High Court Judge Joanna．Smith (Joanna Smith) The application submitted by Alex was granted, To dismiss Tesco's claim of malicious registration 2 charge, Allow and accept Ed to present investigative evidence at trial.

background

The well-known supermarket chain Leide has launched a legal action against its commercial rival Tesco, The reason is the membership price card of the latter "Clubcard Prices" The yellow icon is used (See the picture below) . Mr Read said this amounted to trademark infringement. Read's claim of trademark infringement rests on what it owns 2 A separate trademark registration: One is a graphic trademark, Inside the blue box is a yellow circle with a red edge, Bold text inside the circle "Lidl" (The version with text) ; The other logo has the exact same design as the first one, But there are no words (Wordless mark) .

In response, Tesco filed a defence and counterclaim——Petition a court to invalidate a wordless mark on the grounds of bad faith or lack of distinctiveness. At an interim hearing, Read petitioned to dismiss the malicious charges, And asked for permission to respond to salient questions in the trial based on consumer research it has conducted.

Legal problem

The prevailing legal problems are as follows: Read has never used the wordless trademark. The court considered whether this lack of use showed that the wordless mark was merely used as "A legal weapon to deploy in a lawsuit" , Trademark applications are filed to obtain benefits beyond the intended function of the trademark. The court considered whether Read intended to make its trademark portfolio "evergreen (evergreen) "

——The same version of a re-registered trademark, Its sole purpose is to circumvent the prior use trademark requirement

——And submit a trademark without words, Trademark applications are filed to obtain benefits beyond the intended function of the trademark. The court considered whether the investigative evidence presented by Mr Read would be of practical value at trial, And whether its potential value justifies the cost of the investigation.

The court also considered various circumstances in which the survey was not acceptable, Because Read conducted the investigation before the court approved it. The ruling court approved Reed's 2 Item application. The court held that, this 2 All malicious charges should be dismissed, Because all trademark registrations are presumed to be good faith, Tesco has not shown that it has reasonable grounds to refute this presumption.

Although Read did not use the wordless trademark, They just used the text version, But these factors alone do not constitute Lede's intention to use the wordless trademark as "Legal weapon" Objective basis of. similarly, Although an unwritten trademark does constitute a re-registration, But that fact alone does not automatically prove malice or intent to trademark "evergreen" , Nor did Tesco plead otherwise.

The court also held that, Ed can rely on investigative evidence at trial. The court rejected Tesco's argument, That is, the investigation is preemptive, Therefore unreliable. Tesco said, The survey was conducted in "Artificial situation" subprogressive, Because it asks consumers for their opinions on trademarks that have never actually been used. The court rejected that argument, The relevant question is whether a literal trademark gains prominence through the use of a literal version, If you don't consider the consumer reaction to the wordless trademark, It's impossible to determine the question.

The court held that, The main question of the survey—— "Do you think this picture (Wordless mark) What is it" , Helps to determine whether consumers view a wordless trademark as a source identifier associated with calendar. The court held that, Compared with the broader costs of litigation and the financial strength of the parties, The costs associated with the investigation are proportionate and reasonable. The cost of the survey is relatively low, Add to that the potential value, The court had no problem with Read conducting an investigation before obtaining court permission.

(Compiled from www. worldtrademarkreview. com)

Reprinted from China Intellectual Property Network  translation: Rason group　proofread: Wang Dan

disclaimer: This website reprint articles are from the Internet, Does not represent the views of this website or confirm the authenticity of its content. If the source is mislabeled or the copyright of the article is involved, Please contact this website, This website will be corrected in due course, delete, thank you.