European e-Justice Portal - Case Law
Close

BETA VERSION OF THE PORTAL IS NOW AVAILABLE!

Visit the BETA version of the European e-Justice Portal and give us feedback of your experience!

 
 

Navigation path


menu starting dummy link

Page navigation

menu starting dummy link

Case Details

Case Details
National ID 17 Ob 10/11m
Member State Austria
Common Name 17 Ob 10/11m
Decision type Supreme court decision
Decision date 10/05/2011
Court Supreme Court
Subject
Plaintiff Unknown
Defendant Unknown
Keywords misleading advertising, trade mark, unfair competition

Misleading and Comparative Advertising Directive, Article 3 Misleading and Comparative Advertising Directive, Article 4, (h)

Whether the use of confusable signs is misleading has to be determined in accordance with the actual conditions of a market. It is required that the trademarks are actually used and are well known by the public, because otherwise consumers would not be misled by the use of similar signs.
Both the defendant and the plaintiff sell aloe vera products and perfumes via the internet. The defendant sold a perfume for men called "Jungle Man" which he advertises on the internet and in a brochure using a sign in which a cougar jumps over the letters "Jungle Man", which is similar to the trademark "PUMA" with a jumping cougar.
The plaintiff filed a cease-and-desist order to prohibit the defendant from using the sign or a confusable similar sign for advertising or distributing a perfume.
The court of first instance granted a preliminary injunction and prohibited the use of the sign because of risk of confusion with the trademark "PUMA". The appellate court dismissed the safeguard application.
As the plaintiff is not owner of the trademark "PUMA", the court explained that not only the owner of a trademark and his licensee are authorized to file an unfair competition claim, but competitors of an enterprise using similar signs as their competitors to advertise their products as well.
Whether the use of confusable signs is misleading has to be determined in accordance with the actual conditions of a market. It is required that the trademarks are actually used and are well known by the public, because otherwise consumers would not be mislead by the use of similar signs.
Further, the court deemed the defendant's sign not to be similar to the trademark "PUMA" as the word components, which are of higher importance than the image, are different.
Under which conditions is the use of confusable signs misleading?
Full Text: Full Text

No results available

No results available

The appeal was dismissed.