“The claimants, producers and marketers of luxury perfumes, were the proprietors in the United Kingdom of well-known trade marks, some in the form of word marks alone, and others being word and figurative marks including a representation of the bottle or packaging for the particular perfume. The defendants, the producer of and two companies which marketed imitations of fine fragrances, offered a range of products some of whose bottles and packaging were generally similar to those of products of the claimants’, although it was common ground that the similarity was unlikely to mislead professionals or the public. The defendant marketing companies provided to their retailers lists which compared the smell of a product of the defendants’ with a product of the claimants’ which was being imitated, in each case identified by reference to the word mark by which the product was known. In trade mark infringement proceedings brought by the claimants, a number of issues arose relating to the interpretation of (i) Council Directive 89/104/EEC on trade marks and (ii) article 3a(1) of Council Directive 84/450/EEC on misleading and comparative advertising as amended by European Parliament and Council Directive 97/55/EC (‘Directive 84/450’), and the Chancery Division of the High Court referred questions thereon to the European Court of Justice for a preliminary ruling.”
WLR Daily, 19th June 2009
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