Trade Marks: Prince Ernst August of Hanover & Brunswick etc v OHIM

The challenge by the Prince of Hanover to the decision of the First Board of Appeal upholding the examiner's decision to dismiss the Prince's application to register his family coat of arms as a trade mark is a peach of a case. Unfortunately, the transcript of T-397/09 Prinz von Hannover v OHIM [2011] T-EUECJ 397/09 (25 May 2011) is in French. No English or even Anglophone judges or lawyers seem to have taken part.

Before I go into the facts of the case it is worth reading the Wikipedia articles on the House of Hanover and the House of Windsor for some background. It will be seen that the link with Hanover was broken when Queen Victoria acceded to the throne. The royal family changed its name from Saxe-Coburg and Gotha to Windsor at height of the First World War - just about the time of the Bolshevik revolution in Russia. The current head of the House of Hanover is Ernst August V, Prince of Hanover, the third husband of Princess Caroline of Monaco.

His Royal Highness (if that is how he is to be styled) or Monsieur Ernst August as the applicant's name appears in the law report applied to register the following sign as a Community trade mark for a large number of goods and services in classes 16. 25, 28. 32, 33, 35, 39. 41 and 43:

Looks familiar? Well that's what the examiner thought when he (or she) rejected the application on the ground that it was uncannily similar to the coat of arms of the United Kingdom which is protected under art 6ter of the Paris Convention. The Prince appealed to the Board of Appeal which upheld the examiner.

In an action in the General Court against the Board's decision before Judges Czucz, Lubucka and Gratsia, Prince Ernst August argued that there are significant differences between his sign and the royal coat of arms and that they are put to different uses. Rejecting his argument, the Court held that art 7 (1) (h) of Regulation 208/2009 precludes the registration of signs that fall within the scope of art 6ter of Paris unless such registration is authorized by the competent authorities whom I assume to be Cam, Clegg & Co. in this case. Although the transcript is not altogether clear on the point the Prince seems to have argued (possibly with some justification) that his coat of arms had been in his family just as long as they had been with our royals. The Court held that did not matter when the arms were protected as national emblems under the Paris Convention. Also, they added that Arthur & Felicie [2005] ECR II-4891 doesn't apply since art 6ter prohibits similar as well as identical signs.

Comments

Post a Comment

Popular posts from this blog

Copyright: Primary Infirngement - Copying

The right to copy a copyright work is restricted to the copyright owner by s.2 (1) and s.16 (1) (a) of the  Copyright, Designs and Patents Act 1988 . The restriction applies to every description of copyright work though different provisions apply to different types of work (s.17 (1)). This right to restrict copying is referred to as the right of reproduction in art 9 of the Bern Convention and art 2 of the "Copyright in the Information Society" or  Copyright and Related Rights Directive  (Directive 2001/29). Literary Musical, Dramatic or Artistic Works Copying in relation to an artistic, dramatic, literary or musical work  work means reproducing the work in any material form including storing the work in any medium by electronic means. In the case of an artistic work this includes making a copy in 3 dimensions of a 2 dimensional work and the making of a copy in 3 dimensions of a 3 dimensional work. Films and Broadcasts S.17 (4) of the 1988 Act as amended  includes within the
Read more

Patents - Gilead Sciences Inc v NuCana Plc

Image
  Jane Lamber t Patents Court  (Mr Justice Meade) G ilead Sciences Inc and another NuCana PLC  [2023] EWHC 611 (Pat) (21 March 2023) This was an action by Gilead Sciences Inc. and its British subsidiary Gilead Sciences Ltd ("Gilead") for revocation of two European Patents (UK) that had been granted to NuCana Plc ("NoCana"), namely  EP 2 955 190 B1 (“EP190”)  and   EP 3 904 365 B1 (“EP365”) .  NuCana complained that Gilead's product  sofosbuvir  infringed its patents. Mr Justice Meade, who tried the action, could see no real defence to the counterclaim if the claims of the patents were valid. Grounds of Revocation Gilead sought revocation of the patents on the following grounds: Added matter in that the  Markush group definitions of the claims  of the patents are not clearly and unambiguously disclosed in the original application; Lack of plausibility in that the Patents do not plausibly disclose any technical contribution common to substantially all the claimed
Read more

Copyright in Photographs: Temple Island Collections and Creation Records

Image
In our very first NIPC newsletter which we published in June 1997 I wrote a case note on Mr. Justice Lloyd's decision in  Creation Records Ltd. and Others v News Group Newspapers Ltd   [1997] EMLR 444, [1997] EWHC Ch 370, (1997) 16 Tr LR 544. In that case Mr. Noel Gallagher of Oasis and others applied for an interlocutory injunction to restrain The Sun from offering for sale and selling a poster of Oasis that featured a photo of an elaborate set that included a white Rolls Royce in a country club swimming pool. The Sun's photograph was very similar to the photograph that appeared on an Oasis album cover. The similarity arose because The Sun's photographer shot the same scene at roughly the same time and from the same angle as Mr. Gallagher's photographer but he did not reproduce any part of Oasis's print or negative. The learned judge held that the plaintiffs had no arguable case for infringement of copyright though he accepted that they had an arguable case for br
Read more