Intel v CPM: Rapid Response Seminar


Intellectueel Eigendomsrecht


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11 december 2008

The Rapid Response Seminar on the European Court of Justice ruling in Case C-252/07 Intel Corp v CPM (UK) Ltd, jointly run by Class 46 and Hardwicke Building, turned out to be a very pleasant and highly educative experience. Since it was so heavily subscribed, the seminar had to shift its venue from the library in Hardwicke Building — which was turned into a makeshift picnic area at lunchtime — to the handsome purpose-built conference facilities in 33 Chancery Lane.

Chairing the event, Class 46 team member Jeremy explained the genesis and experimental nature of the seminar before introducing the first speaker, Mark Engelman. Mark, a barrister with new MARQUES member Hardwicke Building, represented CPM in this reference for a preliminary ruling. In his talk he gave a fascinating account of the manner in which the verbal formula of the questions referred to the Court came about, as well as the behind-the-scenes claims, arguments, submissions, concessions and posturing that shaped the reference itself. Employing some colourful syllogistic metaphors concerning dogs, fur, barking and teeth, he explained the role played by the concept of likelihood of confusion — which is not a concept most European trade mark lawyers automatically associate with dilution — in the Court’s ruling.

Next to speak was Birgit Clark (Boult Wade Tennant), who unravelled the complexities and the evolution of German dilution law. Old favourites such as the Odol case, together with delictual liability and unfair competition law, were also shown to have shaped modern German thinking to a surprising extent. Birgit’s examples of well-known marks involved in German litigation were memorable and well-chosen, even if they left some of the audience feeling somewhat disconcerted about use of Nivea products.

Speaking third, Frédéric Glaize (Cabinet Plasseraud) employed a set of musical themes when offering a most revealing insight into French trade mark law and how it handles dilution. Unsurprisingly in the eyes of some, it seems that France has only imperfectly implemented the provisions of the Harmonisation Directive but that no-one has sought to remedy this state of affairs. He also explained why every French trade mark infringement the chairman had ever seen additionally claimed liability under Article 1382 of the Civil Code.

Following a tasty if healthy lunch, the vast majority of participants defied the expectations of the cynics and trouped back to 33 Chancery Lane to hear Gino van Roeyen (Banning) give his dramatic and memorable account of the concept of association in Netherlands law and its relevance to dilution doctrine, providing a vivid account of the battle between the late Hugh Laddie and Professor Charles Gielen (NautaDutilh) as to whether the British interpretation of Europe’s approximation provisions was based on clear reading and analysis or on a total misunderstanding of the law’s conceptual basis. A short pause for silence in this presentation served as a mark of respect for the late judge, whose loss we will continue to feel for as long as his judgments are read and appreciated.

The event finished with a lively question-and-answer session, even if we were probably left with more questions than answers. The big debating point, casually thrown into the arena by Richard Gallafent was that of whether, given the need to show an economic impact of dilution on consumer behaviour, those present would confidently advise hypothetical plumber John Smith that he was safe to use the word GLAXO in respect of plumbing equipment. Since there were no officers or employees of GLAXO present, the speculation was pleasantly uninhibited.