Directives and Regulations: a question of perspective. Pharmaceutical Trade Marks Group 20 March 2012. Where does EU law come from?. The initiative to make law lies with the Commission Parliament and Council split the task of scrutinising and amending the Commission’s proposals
Pharmaceutical Trade Marks Group
20 March 2012
The Lisbon Treaty 2009 added further legislative techniques:
“Art.5(2) Any Member State may also provide that the proprietor shall be entitled to prevent all third parties not having his consent from using in the course of trade any sign which is identical with, or similar to, the trade mark in relation to goods or services which are not similar to those for which the trade mark is registered, where the latter has a reputation in the Member State and where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark”.
Case C-292/00 Davidoff & Cie SA and another v Gofkid Ltd, 21 March 2002, per Advocate General Jacobs:
“The optional protection specified in … 5(2) of … Directive 89/104 … relates only to situations in which the goods or services in question are not similar to those for which the (earlier) trade mark is valid. Where goods or services are similar, the national court must examine, in the light of the Court's case-law concerning the protection enjoyed by marks with a highly distinctive character, whether there exists a likelihood of confusion ….
The grounds specified in Article … 5(2) on which such optional protection may be granted are exhaustive and may not be supplemented by national rules protecting well-known marks against later signs which are used or to be used in respect of identical or similar goods or services”.
Case C-292/00 Davidoff & Cie SA and another v Gofkid Ltd, 9 January 2003
“24 … The Court observes that Article 5(2) of the Directive must not be interpreted solely on the basis of its wording, but also in the light of the overall scheme and objectives of the system of which it is a part.
25. Having regard to the latter aspects, that article cannot be given an interpretation which would lead to well-known marks having less protection where a sign is used for identical or similar goods or services than where a sign is used for non-similar goods or services”.
— the length of the fruit expressed in centimetres and measured along the convex face, from the blossom end to the point where the peduncle joins the crown,
— the grade, i.e. the measurement, in millimetres, of the thickness of a transverse section of the fruit between the lateral faces and the middle, perpendicularly to the longitudinal axis.
The reference fruit for measurement of the length and grade is:
— the median finger on the outer row of the hand,
— the finger next to the cut sectioning the hand, on the outer row of the cluster.
The minimum length permitted is 14 cm and the minimum grade permitted
is 27 mm.
As an exception to the third paragraph, bananas produced in Madeira, the Azores, the Algarve, Crete, Lakonia and Cyprus which are less than 14 cm in length may be marketed in the Community but must be classified in Class II.”
“Tolerances in respect of quality and size shall be allowed within each package in respect of produce not satisfying the requirements of the class indicated.
A. Quality tolerances
(i) ‘Extra’ class
5 % by number or weight of bananas not satisfying the requirements for the ‘extra’ class but meeting those for Class I, or, exceptionally, coming within the tolerances for that class.
(ii) Class I
10 % by number or weight of bananas not satisfying the requirements of Class I but meeting those for Class II, or, exceptionally, coming within the tolerances for that class.
(iii) Class II
10 % by number or weight of bananas satisfying neither the requirements for Class II nor the minimum requirements, with the exception of produce affected by rotting or any other deterioration rendering it unfit for consumption.
B. Size tolerances
For all classes, 10 % by number of bananas not satisfying the sizing characteristics, up to a limit of 1 cm for the minimum length of 14 cm”.
Commission Regulation (EU) No 1170/2011 of 16 November 2011 refusing to authorise certain health claims made on foods and referring to the reduction of disease risk
Said the European Food Safety Authority:
“On 16 November 2011 the European Commission published the list of health claims made on foods and referring to the reduction of disease risk (EU No 1170/2011) rejected in previous months by the European Food Safety Authority (EFSA).
Among those claims was a claim related to the role of water in the prevention of dehydration filed earlier this year by two German scientists. At the time, the claim had to be rejected by EFSA because it was filed under the wrong legal provision (Article 14 of Regulation 1924/2006/EC instead of Article 13). In short, Article 14 deals with diseases and illnesses whereas dehydration was not regarded by EFSA as a disease”.
“(1) Pursuant to Regulation (EC) No 1924/2006 health claims made on foods are prohibited unless they are authorised by the Commission in accordance with that Regulation and included in a list of permitted claims.
(6) … the applicant proposed water loss in tissues or reduced water content in tissues as risk factors of dehydration. On the basis of the data presented, the Authority concluded in its opinion received by the Commission and the Member States on 16 February 2011 that the proposed risk factors are measures of water depletion and thus are measures of the disease. Accordingly, as a risk factor in the development of a disease is not shown to be reduced, the claim does not comply with the requirements of Regulation (EC) No 1924/2006 and it should not be authorised”
Good news for ugly apricots, artichokes, asparagus, aubergines, avocadoes, beans, Brussels sprouts, carrots, cauliflowers, cherries, courgettes, cucumbers, cultivated mushrooms, garlic, hazelnuts in their shells, headed cabbage, leeks, melons, onions, peas, plums, ribbed celery, spinach, walnuts in their shells, water melons and witloof/chicory …