Development in Intellectual Property Act in Benelux
Being a combination of three countries viz. Belgium, Neitherland and Luxumburg, a need was long felt to update the IP protection legislation, linking the countries together.
In 2006, the separate laws were replaced with a treaty, known as the Benelux IP Convention (Trademarks & Designs) with direct effect in all three countries and renaming the Trademark Registry as Benelux Office of Intellectual Property (BOIP) for registration purposes.
Since the unification of Trademark Acts, a number of decisions have been taken in Benelux. Among them are:
Trademark infringement:- In a decision of Masterfoods and Societe des Products Nestle, the Commercial Court dismissed Masterfoods'claim that the packaging of Nestle's KitKat chocolate infringed the trade dress of its Maltesters chocolate product. The court held that the use of the word marks Nestle and Kitkat excluded any likelihood of confusion and drew away consumers' attention from the figurative elements as there was sufficient difference between the trade dress of the Kitkat Ball and Maltesters products and infringed the Masterfoods products.
Trademark protection:- The concept of acquired distinctiveness has an important impact on trademark protection in Benelux. The case of Europolis, an insurance service provider stemmed from the BIPO's refusal to register the mark. The ECJ (European Court of Justice) ruled that under the first Trademark Directive, registration of a trademark can be allowed only if it is proven that the trademark has acquired distinctive character through use throughout the part of the territory of the member state or throughout the part of the territory of Benelux in which there exists a ground for refusal.
Protection of well-known marks:- Benelux law grants special protection to famous and well-known marks when it refers to trademarks that are generally known and protected under the IP Convention (Trademark & Design). It is stated that no right in a mark can be obtained if registration causes confusion with a generally known mark which is owned by a third party. However, the owner of a famous or well-known mark can, in certain circumstances, apply for cancellation of a conflicting registration on the basis of bad faith provided the rights holder uses the mark within Benelux and does not have a direct relationship with the registrant. For example in Marie Claire Vs Ipko-Amcor, the court held that since Marie Clarie trademark which was fashion oriented and became well-known throughout Benelux, the defendant registered the similar mark in bad faith for goods and services. It further held that it was conceivable that the relevant public would believe that the defendant's products sold under the Marie Claire mark derived from the plaintiff which was prejudicial to the exclusivity and distinctive power of the trademark Marie Claire.
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