Recent preliminary references to the CJEU on online keyword advertising and registered trade mark infringement have exposed the challenges facing EU registered trade mark law in its response to new technologies. These cases and the challenges they pose provide a timely prism through which to examine the European trade mark law-making process and the role of the CJEU within that process. This article will employ an analysis of the way in which the CJEU has developed certain key new aspects of the law on 'infringing use' to explore concerns over the CJEU's role and approach. It will be argued that, driven by policy considerations, the CJEU has acted creatively to develop the law of infringement in ways which cannot be sustained by the TMD and CTMR and which are likely to cause increasing uncertainties going forward. With the European Commission currently considering reform of Trade Marks Directive 2008/95/EC and Community Trade Mark Regulation 207/2009/EC, this paper will argue that there is a need for more comprehensive and forwardlooking legislative intervention than has yet been proposed and that such intervention will be essential to restoring balance in the European trade mark law-making process.
The decisions of the Court of Justice of the European Union ('CJEU') in Nintendo v BigBen (C-24/16 and C-25/16) on the 'citation' defence at Article 20(1)(c) Community Design Regulation 6/2002/EC ('CDR') and in Acacia v Audi; Acacia v Porsche (C-397/16 and C-435/16) on the 'repair clause' at Article 110(1) CDR make significant inroads into the scope of EU design protection. This article explores the legal reasoning of the Court in both cases. Arguing that the Court's reasoning is unpersuasive, it suggests that the outcomes in Nintendo and Acacia were driven by unstated pro-competitor policy preferences. This may have implications for future directions in CJEU case law on design exceptions.
scite is a Brooklyn-based organization that helps researchers better discover and understand research articles through Smart Citations–citations that display the context of the citation and describe whether the article provides supporting or contrasting evidence. scite is used by students and researchers from around the world and is funded in part by the National Science Foundation and the National Institute on Drug Abuse of the National Institutes of Health.