When are Complementary goods similiar? Waterford Wedgewood PLC v Assembled Investments (Proprietary) Ltd
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2010
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South African Law Journal
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University of Cape Town
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This note discusses the May 2009 decision of the European Court of Justice (ECJ) in Waterford Wedgwood plc v Assembled Investments (Proprietary) Ltd (reported as case C-398/07 P, [2009] ECR 00, OJ C 153 (4 July 2009) 6) under art 8(1)(b) of the Council Regulation (EC) No 40/94 on the community trade mark ((1994) OJ L 11/1 as amended). A trade mark is registered in respect of particular goods or services in a specific class of the trade marks register. Through such registration the trade mark holder obtains protection for its rights in respect to those goods or services in the specified class. It is trite that registered trade marks are protected from infringement by the use of an identical or a similar mark on identical or similar goods or services in the jurisdiction of registration. These are the principles of speciality and territoriality, respectively (Roshana Kelbrick ‘The new trade-mark infringement provisions: How have the courts interpreted them?’ (2007) 19 SA Merc LJ 86). Therefore a person can lawfully use or even register a previously registered trade mark in relation to different goods or services in a different class. However, in some circumstances such use or registration would be detrimental to the rights of the owner of the earlier trade mark. The law protects the rights of the owner of the earlier trade mark in those circumstances through remedies for infringement or registration opposition proceedings.
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Reference:
Ncube, Caroline Bongiwe. (2010). When are Complementary goods similiar? Waterford Wedgewood PLC v Assembled Investments (Proprietary) Ltd, 127