When trademark and industrial design collide
Dziennik Gazeta Prawna published an article by Wojciech Gierszewski entitled “When registered design and trademark collide – trademark prevails” containing an analysis of the judgment of the CJEU of March 6, 2019 (case no. C-693/17P). In the facts of the case there was a collision between an industrial design, registered in the category of packaging, for the benefit of a Polish entrepreneur – BMB sp. z o.o. (No. RCD-826 680-0001), which is a transparent box for dragées with rounded corners, and the known packaging of dragées (Tic Tac), a registered trade mark for sweets consisting in a transparent shape of the packaging (No. 405177). The author of the article analyses the relation between a trademark and an industrial design and concludes that the scope of protection of a trademark is wider than that of an industrial design. This means that if an industrial design was confronted with an earlier design and the collision was assessed on the basis of individual character the outcome of the assessment would be different than on the basis of the prerequisite that a distinctive sign is used in a subsequent design.
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