CJEU confirms differential treatment of what amounts to unfair advantage for well-known trade marks in its KENZO ESTATE/KENZO judgment

FashionKatIn 2008 Kenzo Tsujimoto filed two separate trade mark applications with the EUIPO. The word sign in respect of which registration was sought was Kenzo Estate. The first application was for goods and services in Class 33 (wine, alcoholic beverages of fruit, western liquors). The second application was for goods and services in Classes 29 (olive oils), 30 (confectionaries), 31 (grapes), 35 (market research on wine), 41 (educational and instruction services relating to general knowledge of wine), and 43 (providing foods and beverages). Following publication of the application, well-known fashion house Kenzo filed a notice of opposition based on its earlier EU word mark KENZO, which is registered in respect of goods in, inter alia, Classes 3, 18 and 25. Kenzo invoked the relative ground for refusal within Article of 8(5) of Regulation 207/2009 [now Article 8(5) of Regulation 2017/1001, the EUTMR]. Article 8(5) EUTMR provides that: “the trade mark…

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