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L’Oreal v Bellure

[2011] 9 E.I.P.R., 550

Case summary last updated at 01/02/2020 18:12 by the Oxbridge Notes in-house law team.

Judgement for the case L’Oreal v Bellure

D produced 3 “smell-a-likes” of 3 perfumes made by C (L’Oreal). The names of each of the perfumes imitated was protected by a trade mark. C claimed that its trade marks relating to the 3 perfumes were infringed by:
1)     D’s packaging, which sought to imitate that of C; however this claim dropped.
2)     “Comparison lists” used by D (i.e. lists on the back of packages indicating which of D’s perfumes smelled like which of C’s)
-        E.g. “Stitch No 7 smells like Trésor”
Held:
ECJ (2009):
Article 5(1)(a)
·       See notes.
 
Facts
·       In present case, use of trade mark was not descriptive (as in Arsenal FC)
Ø  Rather it was for comparative purposes
·       Thus was used for purpose of advertising
 
Court of Appeal (2010):
 
Jacobs LJ
Article 5(1)(a)
·       “I have real difficulty” in dealing with the communication/advertisement/investment functions
Ø  Is nothing in legislation about them
Ø  Are conceptually vague and ill-defined
·       Appears to be that any comparative advertising is banned.
Ø  i.e. as it will automatically impinge on advertisement function.
  
Article 5(2)
·       Court appears to be saying that where advantage is taken of an earlier trademark, this is automatically unfair.
·       Thus is no distinction between:
i)         Permissible free-riding
ii)        Impermissible free-riding
·       This amounts to pointless monopoly.
 
Facts
·       On basis of ECJ’s preliminary judgment:
1)     Comparison lists breach Article 5(1)(a)
-        As they adversely affect advertising function of C’s mark
2)     Comparison lists also breach of Article 5(2)
-        As they take advantage of reputation of C’s mark

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