Download this Paper Open PDF in Browser

Perfume by Any Other Name May Smell as Sweet…But Who Can Say?: A Comment on L’Oreal v. Bellure

Intellectual Property Journal, Vol. 22, pp. 321-334, 2010

14 Pages Posted: 9 Mar 2011  

Carys J. Craig

Osgoode Hall Law School, York University, Toronto

Date Written: August 15, 2010

Abstract

L’Oréal v. Bellure is a remarkable case. The ruling of the European Court of Justice, as reluctantly applied by the Court of Appeal of England and Wales, protects the plaintiff’s trade-mark rights against free-riding and prohibits the defendants from taking any commercial advantage of the reputation attaching to the plaintiff’s famous perfume brands. In doing so, it limits free competition and commercial expression without identifying any real harm (consumer confusion, blurring or tarnishment of the marks) or providing any clear public benefit that would justify such intervention. In this article, I argue that the case reflects a perception of trade-mark rights as private property, and the owner of a valuable trade-mark as morally entitled to absolute protection due to his investment in the creation of the brand. In Canada, we should learn from this ruling, prepare to avoid the mistakes of the ECJ in future comparative advertising cases, and protect the rights and interests of Canadian traders and the public against any similar expansion of trade-mark protection.

Keywords: Trade-marks, Comparative Advertising, Freedom of Expression, Competition

JEL Classification: K13, K29, K39, L12, L59

Suggested Citation

Craig, Carys J., Perfume by Any Other Name May Smell as Sweet…But Who Can Say?: A Comment on L’Oreal v. Bellure (August 15, 2010). Intellectual Property Journal, Vol. 22, pp. 321-334, 2010. Available at SSRN: https://ssrn.com/abstract=1781044

Carys J. Craig (Contact Author)

Osgoode Hall Law School, York University, Toronto ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada
416 736 5189 (Phone)
416 736 5736 (Fax)

HOME PAGE: http://www.osgoode.yorku.ca

Paper statistics

Downloads
334
Rank
74,145
Abstract Views
1,674