Legal context.

The Court of Justice of the European Union was recently referred to for preliminary ruling on the interpretation of provisions relevant to the determination of the particular degree of protection enjoyed by trade marks with a reputation. The decisions in Intel and L'Oréal clarified the meaning to be assigned to specific articles of Directives 89/104/EEC and 84/450/EEC.

Key points.

On the one hand, in the Intel decision, the Court excluded any form of automatic protection for trade marks with a reputation and explained the set of conditions which have therefore to be met. On the other hand, the judgment in L'Oréal seems to have taken a different approach from Intel, by means of a clear favouring of trade mark owners, rather than competitors and consumers.

Practical significance.

The result is that the two decisions, even if compatible with each other, are expressions of different interpretations of the rationale of trade mark protection and, in particular, of the specific status of trade marks with a reputation. Further guidance by the Court is thus awaited.

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