Importers Grouchy Near Seized Cigars; Wake-Up Telephone Telephone Inwards Mattress Case

Can nosotros postulate maintain our habanos dorsum please?

Mastercigars Direct Ltd v Hunters & Frankau Ltd [2006] EWHC 410 (Ch) is a Chancery Division conclusion given past times Judge Michael Fysh QC, sitting on Fri as a High Court guess (he is improve known as the Patents County Court judge). The judgment is huge (you tin read it hither inwards total on BAILII), but the IPKat must confess he works life it starting fourth dimension on LexisNexis/Butterworths' All England Direct subscription service.

The proceedings concerned a merchandise score dispute inwards honor of the import into the Great Britain of many well-known brands of habanos (hand-rolled Cuban cigars). The dispute arose from the ongoing draw of piece of job organisation past times CHSA, the Cuban proprietor of the merchandise marks inwards issue, as to the legitimacy of importing habanos which had been purchased from official sales outlets inwards Republic of Cuba together with afterwards imported into the Great Britain past times anyone other than Hunters & Frankau (CHSA’s sole Great Britain distributor).

Mastercigars Direct, who imported together with owned a item consignment of habanos, sought the liberate of that consignment from HM Customs together with Excise (HMCE), which seized the consignment nether its statutory powers on the grounds that it contained counterfeit goods that infringed CHSA’s merchandise marks. Mastercigars, denying that the cigars were counterfeit or that they infringed CHSA’s merchandise marks, sought declaratory relief to that effect, relying on the history of before consignments to demonstrate a previous classify of dealing together with thence consent on the business office of CHSA.
Judge Fysh QC allowed entirely business office of Mastercigars' claim. Mastercigars had failed to seek that CHSA had consented to the importation of either the consignment inwards conform or whatsoever of the 'historic' consignments. However, the evidence supporting the disceptation that the cigars were counterfeit was "riddled amongst mysteries, lacunae together with procedural unfairness" to Mastercigars Direct.

has latterly been considering the ECJ's conclusion inwards Case C-405/03 Class International, as good as this decision. The ECJ was criticised for making it also hard for merchandise score owners to command potentially infringing activities inwards honor to goods imported from exterior the EEA; but hither it appears that it's only as hard for the owners of allegedly infringing goods to larn them dorsum into circulation again. Merpel says: you're non suggesting that the constabulary is perfectly balanced when it's every bit inconvenient for both sides, are you?

More on cigars here
How to topographic point a mistaken cigar here


ECJ wake-up telephone telephone inwards mattress case

It may postulate maintain taken a hateful solar daytime or 2 to larn on to the Curia website, but Case C-421/04 Matratzen Concord SA v Hukla Deutschland SA, end Thursday’s ruling of the European Court of Justice, is forthwith available.

Hukla owned the Castilian merchandise score MATRATZEN for beds, sofa beds together with military camp beds. Matratzen sought to cancel the score before the Barcelona Court of First Instance, objecting that the discussion ‘matratzen’ meant ‘mattress’ inwards German. Accordingly the discussion of which the score consisted was generic together with could mislead consumers regarding the nature, quality, characteristics or geographical rootage of products bearing the merchandise mark. After the courtroom rejected the action, Matratzen appealed to the Provincial Court of Barcelona, which stayed the proceedings together with referred the next query to the European Court of Justice for a preliminary ruling as to whether Articles 28 EC together with xxx of the European Treaty must survive interpreted as pregnant that they foreclose the registration inwards a Member State, as a national merchandise mark, of a term borrowed from the linguistic communication of some other Member State inwards which it is devoid of distinctive grapheme or descriptive of the goods or services inwards honor of which registration is sought.

Side-stepping the query past times answering it inwards damage of the merchandise score harmonisation directive rather than the European Treaty itself, the Court ruled:

Article 3(1)(b) together with (c) of Council Directive 89/104 does non foreclose the registration inwards a Member State, as a national merchandise mark, of a term borrowed from the linguistic communication of some other Member State inwards which it is devoid of distinctive grapheme or descriptive of the goods or services inwards honor of which registration is sought, unless the relevant parties inwards the Member State inwards which registration is sought are capable of identifying the pregnant of the term.

The courtroom explained that, as the registrability of merchandise score was a acre of constabulary that had been exhaustively harmonised, it was Directive 89/104, as a harmonising measure—and non the EC Treaty—that had to survive considered when deciding whether Community constabulary precluded the registration of a national merchandise mark.

agrees that this approach is the right one, though he notwithstanding wonders whether MATRATZEN should survive considered as validly registered for mattresses inwards Spain, given the large number of Germans who postulate maintain either retired to Espana or regularly vacation there: are they non also relevant consumers?