Recent Cases

L’Oreal v Bellure

The defendants appealed against a finding that they had infringed the claimants’ trade marks in relation to the manufacture of “smell-a-like” perfumes.  The claimants produced premium perfumes with names such as Tresor and Miracle.  The defendants’ produced perfumes designed to smell like one of the claimants’ leading brands and adopted names evoking similar concepts, such as Coffret d’Or, and with similarly designed packaging.  The defendants included in the packaging for their perfume a comparison list showing which of the claimants’ perfumes each of their perfumes was designed to smell like.  The Court of Appeal agreed that no-one was deceived by the comparison lists and decided to refer several questions to the ECJ to clarify a range of issues under the Trade Marks Directive, relating to taking unfair advantage or a mark’s reputation, and under the Comparative Advertising Directive.
The ECJ explained that a defendant could be taking unfair advantage of a mark’s reputation where it sought to benefit from the attractive power of the mark so as to “ride on the coat-tails” of the mark’s reputation.