Adidas v Marca II: Undue Limitations of Trade Mark Owner's Rights by the European Court of Justice?

摘要

The ECJ uses the public interest as an element for assessing distinctiveness. This element is however threatening to slip into the scope of protection of marks, as will be seen when the authors discuss the adidas case that has been referred to the ECJ. In addition, several other decisions, including Opel v Autec and Celine, will be discussed.rnThe trade mark rights ensuing from a trade mark registration, or at least some of them, used to be fairly straightforward, in particular where the use of a sign identical to a trade mark for identical goods or services is concerned. Use of such a sign has always been seen as constituting infringement. Another issue is the public interest that the European Court of Justice (ECJ) uses as an element for assessing distinctiveness. This element is threatening to slip into the scope of protection of marks, as we will see when discussing the new adidas case that has been referred to the ECJ.