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Author: Birgit Clark (Locke Lord LLP, London, UK)
Case C-20/14 BGW Marketing & Management Service GmbH v Bodo Scholz, Court of Justice of the European Union (CJEU), Opinion of Advocate General (AG) Mengozzi, 12 March 2015
Journal of Intellectual Property Law & Practice (2015) doi: 10.1093/jiplp/jpv109, first published online: June 21, 2015
The Advocate General provides guidance on how to assess a likelihood of confusion with regard to acronyms included in descriptive composite trade marks, holding that the guidance of the Court of Justice of the European Union in Medion (C-120/04, EU:C:2005:594) is applicable.
Under the heading ‘Further grounds for refusal or invalidity concerning conflicts with earlier rights’, Article 4(1)(b) of EU Directive 2008/95 provides that a trade mark:
shall not be registered or, if registered, shall be liable to be declared invalid: if because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public; the likelihood of confusion includes the likelihood of association with the earlier trade mark.
Articles 3(1)(b) and (c) of the Directive provide that:
the following shall not be registered or, if registered, shall be liable to be declared invalid:… (b) trade marks which are devoid of any distinctive character; (c) trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, or the time of production of the goods or of rendering of the service, or other characteristics of the goods or services.
The Bundesverband der deutschen Gesundheitswirtschaft (German Federal Association for Businesses in the Healthcare Sector) applied in 2006 to register the composite word trade mark ‘BGW Bundesverband der deutschen Gesundheitswirtschaft’ as a German trade mark in classes 16, 35, 41 and 43. An opposition was filed by BGW Marketing & Management Service based on its earlier word/figurative mark consisting of the letters ‘BGW’ set inside a black square, covering similar goods and services in classes 16, 35 and 41.
The opposition went through several instances and ended in the German Federal Patent Court, which found that there was a likelihood of confusion between the marks in relation to identical goods in class 16 (printed products) and identical and similar services in classes 35 and 41 (advertising services, organization of seminars and organization of competitions), insofar as these were provided to businesses operating in the health sector. In this context, the Bundespatentgericht wondered about the significance of the acronym BGW at the beginning of the composite mark ‘BGW Bundesverband der deutschen Gesundheitswirtschaft’ (emphasis by the author) when assessing the likelihood of confusion and found that guidance from the Court of Justice of the European Union (CJEU) was potentially conflicting.
German case-law suggested that the word combination (‘Bundesverband der deutschen Gesundheitswirtschaft’) was descriptive of the goods and services covered, while the acronym ‘BGW’ either dominated the overall composite mark or at least retained an independent distinctive role within in, in accordance with the CJEU’s guidance in Medion (C-120/04, ECLI:C:2005:594), where the court had held that:
… beyond the usual case where the average consumer perceives a mark as a whole, and notwithstanding that the overall impression may be dominated by one or more components of a composite mark, it is quite possible that in a particular case an earlier mark used by a third party in a composite sign including the name of the company of the third party still has an independent distinctive role in the composite sign, without necessarily constituting the dominant element (para 30).
However, the German judges found that matters were not quite as clear-cut, in light of potentially conflicting guidance provided in other CJEU decisions, namely Joined Cases Strigl (C-90/11, EU:C:2012:147) and Securvita (C-91/11, EU:C:2012:147) which concerned the registrability of the signs ‘Multi Markets Fund MMF’ and ‘NAI – Der Natur-Aktien-Index’ as trade marks. Notably, these cases related to absolute grounds for refusal of a trade mark due to a lack of distinctiveness and descriptiveness under Articles 3(1)(b) and (c) of the Directive, rather than relative grounds for refusal under Article 4(1)(b). The German court was particularly concerned with the direction provided in paras 32 and 38:
… in each of the two cases, the three capital letters at issue, that is to say, ‘MMF’ and ‘NAI’ respectively, represent the initial letters of the word combinations to which they are attached. Thus, the word combination and the letter sequence, in each case, are intended to clarify each other and to draw attention to the fact that they are linked. Each letter sequence is therefore designed to support the relevant public’s perception of the word combination, by simplifying its use and by making it easier to remember. …
On the contrary … the letter sequence which reproduces the initial letters of the words comprising that word combination occupies only an ancillary position in relation to the word combination. As the referring court suggests, each of the letter sequences at issue, although not descriptive when considered in isolation, may be descriptive when combined, within the mark at issue, with a principal expression, which itself is descriptive as such, of which it is perceived to be an abbreviation.
Applying this guidance, the court found that it was in conflict with the precedent in Medion, if the ‘BGW’ element only assumed an ancillary position in relation to the word combination, then it was illogical to assume that it could at the same time dominate the mark’s overall impression and/or retain an independently distinctive role within the overall composite mark. Ultimately, this would lead to the result that there could be no likelihood of confusion between BGW and ‘BGW Bundesverband der deutschen Gesundheitswirtschaft’, a conclusion with which the German court did not agree. However, the court also found that the relevant public’s perception of a mark cannot vary depending on the type of grounds for refusal, and decided to suspend its proceedings and refer the question to CJEU for further guidance in a preliminary ruling.
The court referred the following question to the CJEU:
In the case of identical and similar goods and services, there may be taken to be a likelihood of confusion for the public if a distinctive sequence of letters which dominates the earlier word/figurative trade mark of average distinctiveness is made use of in a third party’s later mark in such a way that the sequence of letters is supplemented by a descriptive combination of words relating to it which explains the sequence of letters as an abbreviation of the descriptive words?
Advocate-General Mengozzi’s Opinion in essence agreed with the German Federal Patent Court’s underlying conclusion that the guidance in Medion was applicable, whereas the precedents in Strigl and Securvita did not apply in the present case, particularly due to the different factual and legal framework of Articles 3 and 4 of the Directive. Inter alia, conducting an empirical analysis, AG Mengozzi took the view that, in Strigl and Securvita, the acronyms occupied an ancillary position in relation to the word combinations they represented. This followed from the public’s perception of the existence of a link between the acronyms and word combinations, in which they were recognized as abbreviations. In view of this interdependence between the marks’ mutually descriptive components, the AG concluded that the acronyms’ potential distinctiveness could not be passed on to the marks as a whole and excluded the possibility that their ancillary position had any bearing on the likelihood of confusion examination.
AG Mengozzi further explained that, as usual, the likelihood of confusion must be appreciated globally, taking into account all factors relevant to the circumstances of the case, on the basis of the overall impression conveyed by the marks, bearing in mind their distinctive and dominant components, as well as the public’s perception in relation to the goods and services covered. Moreover, the assessment of the likelihood of confusion can be determined in connection with the mark’s dominant component only when all other components are negligible. Applying Medion, the AG held that it was crucial whether the earlier BGW mark retained an independent distinctive position within the later composite mark or whether the acronym BGW represented a separate logical unit with its own distinctiveness due to the interdependence between the acronym and the word combination ‘BGW Bundesverband der deutschen Gesundheitswirtschaft’.
When assessing the likelihood of confusion between ‘BGW’ and ‘BGW Bundesverband der deutschen Gesundheitswirtschaft’, the AG took the view that the CJEU would have to take several factors into consideration: (i) the relevant public and its level of attention, (ii) the nature and types of goods and services involved, (iii) the position of the acronym BGW in the later mark, (iv) the descriptiveness of the word combination ‘Bundesverband der deutschen Gesundheitswirtschaft’, (v) the likelihood that the relevant public would immediately interpret BGW as acronym for the word combination, (vi) the ‘link’ between the components of the composite mark and (vii) how this interdependence would affect how the earlier BGW mark would be recalled in the mind of the consumer.
The German Federal Patent Court’s reference is not just of academic relevance but could have potentially far-reaching effects on the assessment of a likelihood of confusion as outlined by the AG in his opinion: if the acronym, which is shared by both marks, is devoid of an independent distinctive role within the composite mark, it cannot at the same time influence the public’s perception of the composite mark and its overall impression. Consequently, it will then be unable to cause a likelihood of confusion with the earlier BGW mark. However, a likelihood of confusion would logically have to be assumed where the relevant public is aware of the existence of the earlier BGW trade mark and interprets it to have the meaning the later mark and, thus, associates it with the same commercial origin.
While the AG’s opinion is logical, it will have to be seen whether the CJEU will follow his reasoning to the last detail, notably whether a likelihood of confusion may only have to be assumed where relevant public interprets the earlier acronym mark as having the same meaning the later mark. Conceivably, consumers may recall the earlier trade mark and may not necessarily believe it to have the same meaning as the later composite mark and nonetheless be confused.Continue Reading ...
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$$ Implanted regions 102,104 and lightly doped regions 106,108 are located in the silicon substrate 92 on respective opposed sides of the polysilicon region 96. / ポリシリコン領域９６の両側に、シリコン基板９２の中に注入領域１０２、１０４と軽度ドープト領域１０６、１０８が配置されている。(USP5541434)
$$ It also ensures that the input member 22a is positioned at the input side of the nip between the two wheels 13 and 14, and the injector head 22b is positioned at the output side of the nip. / また、入口部材２２ａが２つのホイール１３，１４の間のニップの入口側に位置し、かつ注入器ヘッド２２ｂがニップの出口側に位置することを確かにする。(USP5749565)
$$ In the design in which the electrode substrate is not diffusion-limiting, a cover plate which contains a means to limit diffusion of gas to the sensing electrode is attached over the side of the electrode assembly which does not carry the electrodes. / 電極基板が拡散を制限するものではない設計の場合、検出電極へのガスの拡散を制限するための手段を含むカバープレートを、電極集成体の電極を担持していない側に取り付ける。(USP5914019)
$$ An aqueous phase on one side of the membrane is at a higher pressure than an organic phase on the other side of the membrane and the liquid interface is stabilised on the aqueous side of the membrane. / 膜の片側にある水性相は、膜のもう一方の側にある有機相よりも圧力が高く、そして液－液界面は膜の水性相側において安定化される。(USP5961832)
$$ The silicon sheet is 400 micrometers thick and with tapered walls extending at an angle of 55°, the end of the aperture 54 at the other face of the silicon sheet is that of a rectangle with sides 40 micrometers wide. / このシリコンシートは厚さが４００マイクロメートルであり、５５°の角度で延びている傾斜した側壁を有し、シリコンシートのもう一方の面にある開口部５４の端は一辺が４０マイクロメートルの方形の端である。(USP5961832)
$$ Details of the circuits on the encoding and decoding side will now be described, with reference to FIGS. 5 to 11. / 以下、図５～図１１を参照して、符号化および復号化の回路の詳細について説明する。(USP6473469)
$$ On the receiving side, a receiver 57 is connected via a microcontroller 58 and buffer 59 to a computer 60. / 受信側では、受信機５７がマイクロコントローラ５８とバッファ５９とを介してコンピュータ６０に接続されている。(USP6611139)
$$ On the second side of the paper, the "felt" side, the central section of the strip is wholly exposed. / 紙の第２面すなわち“表”面では、ストリップの中央部が完全に露出される。(USP6616803)
$$ A signal corresponding to the signal MOD is recovered at the decoding side, and integrated with a time constant similar to the period of the sine wave. / 信号ＭＯＤに対応する信号は復号側で回復され、正弦波の周期に似た時間定数と統合される。(USP6473469)
$$ However, at one side of the dielectric there is a net excess of positive charges while at the other side there is a net negative charge. / しかし、誘電体の片側において、陽電荷の正味過剰がある一方、他方の側では正味陰電荷がある。(USP01004075)
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There are a number of topics I had hoped to blog about. These include:
- The expansion of the Hague International Design system so that it now allows our clients to secure design protection at OHIM and in the USA and perhaps less significantly Japan
- The changes to CIPA bye-laws which will be the subject of a webinar on July 8 from CIPA Hall. If you are a member you can book here
- The Unified Patent Court fees consultation and what it means for more modest patent holders and the patent strategies start ups should follow as a result of their potential exclusion from the new court.
- Progress on the introduction of a grace period for UK patent applicants by the UK-IPO
- The delightful free speech by Judge Alex Koszinski at the 2015 Sir Hugh Laddie lecture on 24 June 2015 at UCL. Peter Groves has blogged about it here.
I have not blogged about these important issues because I cannot draw attention to my blog posts any longer on Twitter. This blog is blacklisted as spam and links to it cannot be tweeted. I have reported it and this is the feedback
Thanks for your report.In order to make Twitter more secure, we have automations in place that could impact your ability to Tweet certain links. If you’re having issues Tweeting a link, our team will review your request and take appropriate action on the reported URL. You can find more information on this topic in this help center article: https://support.twitter.com/articles/90491
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So I hope you feel that silencing blogs is better for you. If not and you cannot tweet a link to this blog or this post. Feel free to report it to twitter support. This is the page you need https://support.twitter.com/forms/spam. Maybe if enough of you want us to continue then Twitter will relent.
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Please do not read this post if you have already read Jeremy’s beautifully succinct summary of the recent appeal hearing between Smith & Nephew and ConvaTec, and have absolutely no inclination to get further bogged down in numerical semantics. However, if you’re a glutton for punishment or have a (somewhat unhealthy) predilection for rounding conventions (as, strangely, this Kat does), then off we go.ConvaTec Technologies and Smith & Nephew have added another court appearance to their long list of confrontations. On 24 June, the Court of Appeal handed down its decision in Smith & Nephew Plc v Convatec Technologies Inc & Ors  EWCA Civ 607, an appeal of Birss J’s 2013 High Court judgment (reported by the IPKat amid New Year frivolities here), which can be read on BAILII.The patent in suit was EP (UK) 1 343 510 in the name of ConvaTec, a patent for a light-stabilized silverisation of gel forming fibres in the context of an antimicrobial component of a wound dressing.Mr Justice Birss’ DecisionThe first hearing was instigated by Smith & Nephew as they sought a declaration of non-infringement for their product Durafiber Ag. Convatec counterclaimed that Smith & Nephew’s Durafiber product would infringe the patent. There were in fact two Smith & Nephew products to be considered: an earlier incarnation of the Smith & Nephew product (“the Original product”) and an updated version (“the Modified product”); this Kat only concerns himself here with the events surrounding the Modified product, which is where the main issue of construction of numerical limitations in claims occurs.Whilst the patent itself has an undeniably chemical flavour, the case turned on mathematical semantics. Claim 1 of the patent in suit (as amended in earlier proceedings) reads:
A method of preparing a light stabilized antimicrobial material, characterised in that the method comprises the steps of:
(a) preparing a solution comprising an
organic solvent and a source of silver in a quantity sufficient to provide a desired silver concentration in said material;
(b) subjecting a material which includes gel-forming fibres containing one or more hydrophilic, amphoteric or anionic polymers to said solution for a time sufficient to incorporate said desired silver concentration into said polymer, wherein said polymer comprises a polysaccharide or modified polysaccharide, a polyvinylpyrrolidone, a polyvinyl alcohol, a polyvinyl ether, a polyurethane, a polyacrylate, a polyacrylamide, collagen, or gelatin or mixtures thereof; and
(c) subjecting said polymer, during or after step (b) to one or more agents selected from the group consisting of ammonium salts, thiosulphates, chlorides and peroxides which facilitate the binding of said silver on said polymer, the agent being present in a concentration between 1% and 25% of the total volume of treatment, which material is substantially photostable upon drying, but which will dissociate to release said silver upon rehydration of said material.The contentious issue of claim construction rested on the interpretation of step (c), and deciding what the skilled person would understand “between 1% and 25%” (as shown in bold above) to mean: are 1% and 25% the absolute limits of the range, or are they imprecise numbers which could be the result of ‘rounding’ conventions?
How to round up cats
ConvaTec argued that “between 1% and 25%” did not define precise values, but would be seen as whole numbers which could be the result of the basic whole number rounding convention; that is, 1% encompasses values ≥ 0.5% and < 1.5%, and 25% encompasses values ≥ 24.5% and < 25.5%. Therefore, the claimed range includes all concentrations of binding agent equal to or greater than 0.5% and less than 25.5%. According to this approach, Smith & Nephew’s product (which contains 0.77% binding agent) would fall within the scope of the claim.Smith & Nephew, on the other hand, argued that the limits of the claimed range were precisely as they were stated (i.e. a concentration of 0.999% would not fall within the scope of the claim). This seems to go too far, and this Kat considers that such an argument was always doomed to failure.However, their fall back argument was that the skilled person would understand the values to be correct to the number of significant figures displayed. That is, the number 1 is correct to one significant figure, and so encompasses all values ≥ 0.95 and < 1.5 (as a result of the “mathematical quirk” discussed below). The number 25 is correct to two significant figures, and so encompasses all values ≥ 24.5 and < 25.5. Therefore, the scope of the range claimed would be ≥ 0.95% and < 25.5%. This would mean that Smith & Nephew’s Durafiber Ag product, prepared using only 0.77% binding agent, would not infringe.Birss J rejected the argument that the claimed range represented absolute limits as primarily argued by Smith & Nephew, but ConvaTec’s ‘whole number rounding’ argument did not convince him either; instead, he held that the numbers were accurate according to the number of significant figures displayed. Smith & Nephew’s Durafiber Ag product was therefore found not to infringe.Court of Appeal Decision
Following the first hearing, both parties appealed against Birss J’s construction of the numerical range – although Smith & Nephew may appear to have achieved what they required in the first trial, their appeal was principally in relation to issues relating to the Original product.ConvaTec once again argued that the claimed range represented whole numbers which could be the result of the basic rounding convention, and Smith & Nephew maintained that the limits of the claimed range were precisely as they were stated (this Kat is surprised that Smith & Nephew attempted this line of argument again). However, their fall-back position was that Mr Justice Birss was indeed correct – this Kat further wonders whether Smith & Nephew perhaps would have had more luck at the appeal if they had fully endorsed this aspect of Birss J’s decision.The Court of Appeal considered a number of UK and EPO cases. Much of the UK case law indicated that the numerical values of claimed ranges should be interpreted to represent values correct to the number of significant figures displayed. On the face of it, this agrees with Judge Birss’ construction.EPO case law featured a greater disparity of claim construction in similar cases, but the court highlighted EPO decision T1186/05 Multilayer films/Cryovac as a somewhat harmonising decision. Here, the EPO Board stated that, when comparing a patent which claimed a range of 0.89 – 0.92 to a piece of prior art which disclosed an amount of 0.885, the 0.885 value should be rounded to 0.89, as “an appropriate comparison [can] only be made with the prior art if its disclosure [is] rounded to the same degree of accuracy”.Lord Justice Kitchen summarised some ground rules for numerical range construction in paragraph 38 of the decision:
“First, the scope of any such claim must be exactly the same whether one is considering infringement or validity.
Secondly, there can be no justification for using rounding or any other kind of approximation to change the disclosure of the prior art or to modify the alleged infringement.
Thirdly, the meaning and scope of a numerical range in a patent claim must be ascertained in light of the common general knowledge and in the context of the specification as a whole.
Fourthly, it may be the case that, in light of the common general knowledge and the teaching of the specification, the skilled person would understand that the patentee has chosen to express the numerals in the claim to a particular but limited degree of precision and so intends the claim to include all values which fall within the claimed range when stated with the same degree of precision.
Fifthly, whether that is so or not will depend upon all the circumstances including the number of decimal places or significant figures to which the numerals in the claim appear to have been expressed.”Kitchin LJ firstly dismissed the argument that the limits should be taken as exact values. This decision was reached by considering that the patentee had in mind the possibility of expressing numerical values to a very high precision – the concentration of binding agent can be measured to a high degree of accuracy, and sections of the specification described concentrations accurate to two decimal places (i.e. 0.01%). It was also considered that the reader is taught that the invention can be performed with a binding agent concentration between 0.01 and 50%; the Court believed that this taught the skilled person that there is no technical reason to read the claim as requiring the use of a binding agent which falls between the exact numerical values of 1% and 25%. [This Kat wonders what has happened to the doctrine that “what is not claimed is disclaimed” – there is surely an argument that if it is taught that the invention can be performed with a binding agent concentration between 0.01 and 50%, but what is claimed is narrower, then this narrower range should be given a strict interpretation. Yet Kitchin LJ took the opposite view – “Once again this is a factor which undermines Smith & Nephew’s favoured interpretation of the claim.”]
Merpel is often prone to a little rounding
The Court then considered precisely how imprecise the patentee intended the limits to be understood.
As mentioned above, in comparable situations much of the UK caselaw directs a construction based on accuracy to significant figures, rather than a “whole numbers” approach. However, there is something of a “mathematical quirk” with this particular range claimed. As explained at the first trial, the range 1% to 25% using the significant figures approach encompasses numbers within the range ≥ 0.95% and < 25.5%. It is only the whole number 1 and powers of the number 10 to which such an asymmetrical range applies though; if the bottom of the claimed range had been 2% rather than 1%, even when applying the significant figures approach, the claim would have included all values ≥ 1.5 and < 25.5, a more broadly symmetrical distribution.Counsel for ConvaTec explained further mathematical quirks with apparent aplomb (“helpful diagrams” were employed: Merpel can only hope that counsel managed to find a suitably feline number line). The patent description features a number of appropriate numerical ranges. One paragraph features the range from 1% to 10%, and another from 10% to 25%. Applying the significant figures approach to the first range would encompass all values ≥ 0.95 and < 10.5, but the second range would encompass ≥ 9.95 and < 25.5 (assuming that 10 is regarded to be accurate to two significant figures). As noted by Kitchen LJ, the error margin around 10% is an order of magnitude greater in one case than it is in the other.The Court of Appeal felt that there was no reason to suppose that the accuracy conveyed by the patentee would depend on whether the bottom of the range is 1%, 2% or 5%, or whether 10% is at the top or bottom of the range. The Court of Appeal felt that Birss J had over-estimated the importance of the relative margins of error at the top and bottom of the claimed range, and under-estimated the importance of the anomalous figures which arise from the application of the significant figures approach (something of a judgmental rounding error).Conclusion
The Court of Appeal therefore found that the claimed 1% – 25% range encompasses values of the range ≥ 0.5% and < 25.5% according to the “whole number” rounding convention. Hence Smith & Nephew’s Durafiber Ag product (and the method by which they create it) infringes ConvaTec’s patent.
This Kat was completely convinced by Birss J’s erudite reasoning and finds himself surprised that the Court of Appeal felt unable to endorse it. He is troubled by a reasoning that considers that 1 as a lower limit of a range in a claim can actually mean 0.5. From the comments on Jeremy’s post, it seems that some readers are likewise uncomfortable with the Court of Appeal decision. He was particularly taken with the point that both judgments (but the appeal decision more than the first instance) can be seen to focus on the mathematical conventions, rather than what a chemist would think about the claimed range. (This view is expanded in a piece on the PatLit blog, which also criticises the Court of Appeal decision in Actavis v Lilly.) What view do the rest of our readers take?
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