Lord Justice Jacob critical of ECJ ruling as poor consumers lose out The Court of Appeal has reluctantly followed the ruling of the European Court of Justice (ECJ) in L’ Oréal’s battle against “free riding” products.

L’Oréal v Bellure [2010] EWCA Civ 535, concerned a range of products, each of which smelled like a luxury L’Oréal perfume. The manufacturer, Bellure, provided a comparison list showing which of its products matched which L’Oréal perfume. L’Oréal claimed this list infringed their trademarks. Bellure claimed it was a legitimate comparative advert.

The ECJ, in response to questions referred by the Court of Appeal, held that unfair advantage can be taken by a third party where members of the public can make a link between two products, even if the use is not detrimental to the mark or its proprietor.

Susan Barty, partner at CMS Cameron McKenna, says: “As far as brand owners are concerned, this will be hugely welcomed because it stops people taking a free ride.

“It may also impact on supermarket lookalike brands and others that piggyback on reputable brands.”

Barty says there is a “real possibility” that other brand owners will want to bring similar claims following this case.
 

Source: New Law Journal