Bringing you monthly news of key developments in intellectual property law.

Trade Marks

Sunrider Corporation v Vitasoy International Holdings Limited (High Court)

The High Court has granted in part an appeal by the proprietor of the mark VITALITE, registered for nutritional drinks and preparations for making such drinks, which was invalidated on the application of the proprietor of the mark VITA, registered for fruit drinks. The judge held that the registration should be reinstated in respect of herbal drinks, because, despite being specified in the same class in the two specifications, herbal drinks are not similar to juice drinks.

For the full judgment in this case, click here.

Adam Opel AG v Autec AG (European Court of Justice)

The ECJ has held that use of a manufacturer’s registered trade mark on a toy replica of the manufacturer’s product, where the manufacturer’s trade mark specification included toys, constitutes trade mark infringement under Article 5(1)(a) of the Trade Marks Directive if such use is liable to affect the mark’s function as a mark registered for toys. It also held that such use could also be prevented under Article 5(2) of the Directive if it is detrimental to the distinctive character or repute of the manufacturer’s trade mark. Such use is not permitted under Article 6(1)(b) of the Directive as indicating characteristics of the scale models.

For the full judgment in this case, click here.

Anheuser-Busch Inc v Portugal (European Court of Human Rights)

The Grand Chamber of the European Court of Human Rights (ECHR) held that a trade mark application, like a trade mark, is a ‘possession’ under Article 1 of the First Protocol to the European Convention on Human Rights. The decision recognises the inherent value in a trade mark application and may be relied upon by those seeking to persuade national courts that Article 1 can be used to protect IP rights.

For the full judgment in this case, click here.

Dyson Limited v Registrar of Trade Marks (European Court of Justice)

The ECJ has ruled against Dyson’s application to register the transparent "bin" which forms part of its vacuum cleaner as a trade mark. There was no sign which was capable of being a trade mark under Article 2 of the Trade Marks Directive. The ECJ did not think it necessary to answer the questions referred by the English court relating to circumstances where a non distinctive mark may have acquired distinctiveness (Article 3(3) of the Directive).

For the full judgment in this case, click here.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 21/02/2007.