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BELARUS
Сombating unfair competition should now become easier
On 3 August 2018 a new version of the Belarusian competition law came into force. We may expect that under the new version combating unfair competition will become easier. The Law now differentiates between different types of unfair competition, for example, unfair competition via discrediting, inaccurately comparing goods or services, acquiring and using intellectual property rights, and so on. Among other developments the Law explicitly prohibits illegally receiving/using/disclosing commercial secrets, inaccurately drawing a comparison with a competitor by using superlatives such as “the best” or “the first”, and imitating a competitor’s corporate identity or the attributes of their goods, labels, names, and colours. Previously it was harder to prove unfair competition from the IP perspective, because, for example, one needed to prove a confusing similarity (regarding trademarks) or full duplication (regarding industrial designs). At the same time, the Law still obliges a claimant to prove other elements of unfair competition such as damages by unfair competition.
LITHUANIA
Trademark infringement
A Lithuanian dairy processing company disputed the use of the word sign “ЛИЛИПУТ” and sought invalidation of the registered national designs for packaging used for the goods bearing the word sign. The Court ruled on the question of the likelihood of confusion between the word mark „ЛИЛИПУТ“ and the trademark “Liliputas”, belonging to the claimant, both words being the equivalents of the word “Lilliput” in different languages. The Court dealt separately with the question whether the fact of non-use of the trademark could influence the outcome of the case. The Court ruled in favour of the claimant. However, an appeal is pending.
ESTONIA
Blank media levy
A number of Estonian artistic associations, including the Estonian Author’s Society, the Estonian Composers Union and the Estonian Association of Phonogram Producers, filed a claim for EUR 42 million against the Estonian government for payment of the so called blank media/private copying levy. Artistic associations criticise the government for failing to update the list of devices which are subject to the levy. The government regulation which should list all storage and recording media to which the levy applies currently lists only VHS cassettes, compact cassettes and compact discs. Thus, the levy does not apply to new recording media such as USB drives, hard disks, mobile phones, tablets, laptops, and so on. Artistic associations filed a similar claim back in 2013 for about EUR 800,000 which resulted in the government being required to remunerate EUR 80,000. More information available here.
Establishing legal facts
At the beginning of 2018, an amendment to the Estonian Bailiffs Act was introduced according to which bailiffs may provide the professional service of establishing a legal fact in extrajudicial proceedings. This should, for example, enable bailiffs to determine intellectual property infringements, e.g. by conducting test purchases. However, it is clear today that for establishing a legal fact, bailiffs cannot search or enter foreign premises without consent, seize infringing objects or demand statements. Since the amendment is fairly new, no public information is yet available on practice.
LATVIA
Generic marks
On 12 July 2018 the Latvian Court of Cassation overturned a judgment of the Court of Appeal concerning the well-known trade mark “CITRAMON”, which is used for pharmaceutical products. The case was sent back to the Court of Appeal for review.
Initially the Court of Appeal had satisfied the claim of the Russian company AS “Nižfarm” brought against the Latvian company SIA “Briz” to declare the trade mark “CITRAMON” null and void. The claimant alleged that due to long and extensive use of the trademark, the term “citramon” has become a generic term and no longer serves its purpose of identifying the goods of a particular provider. The Court of Appeal agreed that the term “citramon” is a generic term and decided to remove the trade mark “CITRAMON” from the Latvian trade mark registry. The Court of Appeal noted that there are eight manufacturers in the Latvian pharmaceutical market that provided pharmaceutical products under the name “Citramon(-s)”, thus profoundly affecting consumers' perception of the term “citramon” as used to describe a whole group of products, namely, pain relief medicines. However, the Court of Cassation stated that it is very unlikely that the consumers call all pain relief medicines “citramon”; such general statements are not sufficient and must be supported by evidence.
Exhaustion of trademark rights
On 4 August 2018 the Latvian Court of Cassation overruled a judgment of the Court of Appeal concerning a trademark owner’s rights to prohibit sale of goods that have been legally put into free circulation in the EU. The claim was filed by the well-known construction equipment manufacturer “JCB” against the Latvian undertaking SIA “Diagro”, which was selling tractors from various manufacturers. However, SIA “Diagro” advertised that it is a part of the “JCB family”, despite the fact it was not an official JCB dealer.
The judgment confirms that it is not sufficient that goods enjoy free movement in the EU with the consent of the trademark owner. In order to prevent infringement of a trademark owner’s rights, a trader should avoid creating an impression that the company is related to the manufacturer. The Supreme Court noted that the owner of the trademark has legitimate reasons for preventing further movement of goods for profit when use of the trademark seriously threatens the trademark’s reputation or if the reseller gives the impression that it is economically associated with the trademark owner.
The case was sent back to the Court of Appeal for review. |
