Friday

WHAT'S THAT SMELL? THE TRADEMARK TROLL SAYS IT'S THE ODOR OF UNFAIR COMPETITION

If you are L'Oreal of course you must fight to the death. After all, your perfumes cost pennies to produce and have profit margins that other industries can only dream of. But competition and self interest being what they are, if profits are sky high and costs to enter are low, L'Oreal gets a competitor.

For years, L'Oreal has been fighting with a Belgian company called Bellure. Bellure produces copycat fragrances that sell for a fraction of the L'Oreal perfumes. L'Oreal has won some and lost some. But on June 18, 2009 the European Court of Justice (ECJ)rendered a verdict that will present new challenges to Bellure and retailers who produce store branded goods that compete with national goods.

In a nutshell the ECJ ruled that Bellure was taking unfair advantage of L"Oreal even though consumers were not confused and L"Oreal sufferd no detriment. After a long, tortured display of circular reasoning, the ECJ reached its important conclusion: the use of L"Oreal trademarks in price comparison sheets was a form of comparative advertising. Since the ECJ had already ruled that use of a mark in comparative advertising could be a form of trademark infringement, it was short( well sort of) work to conclude that the comparative price sheets violated both the comparative advertising regs and trademark laws.

The Trademark Troll freely admits that he has not seen the price sheets at issue. But most price comparison sheets are a factual display of information not a form of comparative advertising. The ECJ"s conclusion that such price sheets are a form of advertising is arguably yet another results oriented decision hidden under a blizzard of circular reasoning.

Not even L"Oreal ssserts that these consumers are confused. And the decision does not suggest that L"Oreal's marks are suffering from dilution. Its really about the discomfort that the ECJ and so called legitimate brand holders feel when others take that infamous free ride.

And what of European consumers? Will they lose the chance to freely choose knock off fragrances? Or in house store brand that often sit side by side with national brands and a " compare the price" blurb. Perhaps they will order their knock offs and store brands off the Internet. For sale in America.

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