(2017) 12 Journal of Intellectual Property Law and Practice
19 Pages Posted: 29 Sep 2017
Date Written: September 27, 2017
Due cause is the inbuilt exception to the Trade Mark Directive’s dilution and unfair advantage provision. Until recently, it was believed that it should be interpreted restrictively, following the pre-harmonization Benelux approach. However, this has been cast into doubt by two recent Court of Justice of the European Union (CJEU) cases.
This article examines the extent of ‘due cause’ in the light of Interflora, Leidseplein and how those cases have been received and interpreted by the UK courts. It is argued that, while ‘due cause’ is certainly understood as a wider concept than it has in the past, courts in the UK remain relatively cautious about its breadth. It is further argued that, in the light of the CJEU’s jurisprudence, ‘due cause’ has particular application in unfair advantage cases, but may be less relevant, or even unavailable, where there is blurring or tarnishment.
Nevertheless, there is still the potential for ‘due cause’ to further develop into a more flexible tool, particularly in relation to alleviating the strictness of the CJEU’s approach to unfair advantage.
Keywords: trademark, dilution, defense, defence, due cause, Europe
JEL Classification: k3, k30
Suggested Citation: Suggested Citation