BulletinINTA President Honors Association Volunteers 3 Association News

INTA Leadership Meets in Phoenix

Annual Meeting of Members

Treasurer’s Report

Nominating Committee Report

7 Law & Practice

ARGENTINA Owner of Prior Trademark Registration Prevails on Injunction Against Domain Name Registration

CANADA Health Professionals May Be Less Likely to Be Confused

Unregistered Trademark Exempt from Charter of the French Language

COLOMBIA State Council Determines When Similar Marks May Be Registered

FRANCE Domain Name Registrar Found Financially Liable

OMAN Trademark Offi ce Speeds Up Registration Formalities

PALESTINE Powers of Attorney Procedures Simplifi ed

SOUTH AFRICA Confusingly Similar Color Combination Constitutes Passing Off

UNITED STATES Ninth Circuit Breaks with Sixth and Federal Circuits on “Tacking”

Challenges Filed Against Refusal to Renew HAVANA CLUB Registration

11 Welcome New Members

INTA Bulletin Board

The Voice of the International Trademark Association December 1, 2006 Vol. 61, No. 22

IN THIS ISSUE

At the INTA Leadership Meeting in Phoenix, Arizona, USA on November 9, 2006, As-sociation President Paul W. Reidl presented the 2006 President’s Awards to Charles Gielen and Jean-nie Smith. The President’s Award recognizes volunteers who have contrib-uted to strategically important areas of the Association over a signifi cant period of time.

Dr. Gielen, of NautaDutilh in Am-sterdam, has served on the Meetings Committee, the Publishing Board, the Brand Names Education Founda-tion, the Issues and Policy Committee, the International Amicus Committee, the Dilution and Well-Known Marks Committee, various

presidential task forces, the Board of Directors, the Nominating Committee, the Executive Commit-tee and as an Annual Meeting co-chair. He has

been one of the strongest voices advocating that the Association take a truly international approach to all issues. Mr. Reidl said, “As long as I have known him—and that is a very long time, he has always—and I do mean always—asked, ‘But what about the European im-plications of that? What about the international implications?’ We hear that less and less now

because he taught us to think internationally at the outset.”

Besides his INTA activities, Dr. Gielen is an ad-junct professor and frequent author on trademark

ECJ Rules on Secondary Meaning in Bovemij CaseOn September 7, 2006, the European Court of Justice (ECJ) rendered its judgment in the case Bovemij v. Benelux Merkenbureau (C-108/05). INTA had fi led an amicus brief in the case, which concerned the registrability of a descrip-tive trademark that had acquired distinctiveness through use.

Bovemij fi led an application for the Benelux trademark EUROPOLIS for, inter alia, insur-ance services. The Benelux Trademark Offi ce (BTO) rejected the application, considering that “the sign Europolis is composed of the common prefi x EURO (for Europe) and the noun POLIS and is exclusively descriptive of the services named in the classes 36 and 39 relating to a policy in Europe. The sign has no distinctive character.” Bovemij fi led an appeal with the Court of Appeal in The Hague and argued that EUROPOLIS acquired distinctive character (secondary meaning) through use in the Netherlands and should be accepted for registration on that basis.

The Court of Appeal in The Hague referred the case to the ECJ for a preliminary ruling on the question whether Article 3 sub 3 of the Trademark Harmonization Directive (89/104/EEC) should be interpreted as meaning that in order to acquire dis-tinctive character as a result of use, it is necessary that the sign be regarded as a trademark through-out the Benelux territory (consisting of Belgium, the Netherlands and Luxembourg), or whether it is suffi cient that, as a result of the use made of the sign, the sign is regarded as a trademark by the rel-evant section of the public in a substantial part of the Benelux, such as the Netherlands. The Court of Appeal in The Hague also wanted to know if it was necessary to take into account the linguistic areas within the Benelux, in parts of which Dutch, French and German are offi cial languages. In par-ticular, the Court asked whether it was suffi cient that the sign was regarded as a trademark by the relevant section of the public in a substantial part of the linguistic area of the Member State in which

SEE BOVEMIJ ON PAGE 6

SEE AWARD WINNERS ON PAGE 2

INTA President Paul W. Reidl (center) with 2006 Pres-ident’s Award winners Charles Gielen (Netherlands) and Jeannie Smith (Hong Kong/United Kingdom)

Representing Trademark Owners Since 1878December 1, 20062

Association NewsAward Winners CONTINUED FROM PAGE 1

and other intellectual property issues. For many years he has been a standing advisor to his government on trademark and design law. He also holds leadership positions in the International Association for the Protection of Intellectual Property (AIPPI).

After receiving his award, Dr. Gielen pointed out that it was a particularly special day, in that it was the 35th anniversary of his admission to the Dutch bar. He also talked about his many friends in the Association. “A better world will not be achieved by better trademark protection but by real friendships and peace,” he said. “Let’s continue to use this Association as a means of achieving a better world!”

Ms. Smith, of Baker & McKenzie in Hong Kong, has made substantial contributions over the years to INTA’s growth in Asia. She has served on various Asia task forces, was one of the origi-nal Policy Committee chairs and has served as a mentor to other young leaders who followed her onto the Board of Directors. After her service on the Board, she continued volunteering her time as a committee member and subcommittee chair on various Asia-re-lated committees, presidential task forces and other committees.

“The pages and pages of comments, letters, and Board resolu-tions that she has prepared cannot be calculated,” said Mr. Reidl. “Her dedication and love for this Association is beyond measure, and has been for many years.”

Ms. Smith said she felt like she was making an OSCAR ac-ceptance speech—there were so many people she wanted to thank. She recounted a story of venturing to Vietnam many years ago with INTA External Relations Director Bruce MacPherson to work on INTA’s behalf with government offi cials. The trip turned out to be quite an adventure and brought her in closer contact

with local wildlife than she would have liked, but also resulted in substantial achievements for the Association.

Mr. Reidl also presented eight Volunteer Service Awards for extraordinary volunteer contributions during the past year.

Mark Kudlacik, of CheckMark Network in Hoboken, New Jer-sey, USA, Susan Brady Blasco, of Birch, Stewart, Kolasch & Birch LLP in Costa Mesa, California, USA, Stephen Bullock, of Stone,

Pigman, Walther, Wittmann & Hutchinson LLP in New Orleans, Louisiana, USA, James McCarthy, of McDonnell Boehnen Hul-bert & Berghoff in Chicago, and Joseph Norvell, of Brinks Hofer Gilson & Lione in Chicago, received awards for the Advancement of Committee or Subcommittee Objectives. All recipients of this award were members of the Member Services Committee.

As chair of the Service Firm Subcommittee, Mr. Kudlacik has led the effort to benchmark Association benefi ts offered to service fi rm members and developed a new exhibition assignment process that was implemented at the Annual Meeting—for which exhibi-tors and sponsors gave rave reviews.

Ms. Blasco and Mr. Bullock were recognized for their contribu-tions as co-chairs of the Academic Services Subcommittee. Ms. Blasco has been the driving force behind the academic course given at the Annual Meeting. Mr. Bullock has led the professor and course database project team as well as several programs formerly run by the Brand Names Education Foundation, now the INTA Foundation.

Mr. McCarthy and Mr. Norvell received the award for their work in conceptualizing and administering the Young Practitioners Subcommittee. They benchmarked the needs of young practitio-ners, developed a plan to better address those needs and imple-mented a mentoring program, a young practitioners’ reception and other projects.

Tiki Dare, of Sun Microsystems in Menlo Park, California, USA, and Zhen (Katie) Feng, of Lovells in Shanghai, received awards for Advancement of the Association, presented to individu-als who have advanced the goals, image, profi le and infl uence of the Association in an exceptional way.

Ms. Dare was recognized for her efforts in spearheading INTA’s industry training seminars for the U.S. Patent and Trademark Of-fi ce (USPTO) and speaking for the EU’s Offi ce for Harmonization in the Internal Market (OHIM). These seminars were extremely successful and drew high accolades from both the USPTO and OHIM. Advancing relations between the Association and trade-mark offi ces is a key objective of the Strategic Plan.

Ms. Feng served as the volunteer editor of INTA’s fi rst non-English periodical, the Chinese-language Bulletin. She provided guidance on how to optimize the publication for trademark profes-sionals in China, developed articles and oversaw translation. Devel-oping publications for national and international audiences outside the United States is one of INTA’s strategic objectives, and the “China Bulletin” is a signifi cant step forward in the Association’s relations with its Chinese members and colleagues.

William Seiter, of Seiter & Co. in Santa Monica, California, USA, received the award for the Advancement of Trademark Law, presented to volunteers whose efforts have led to the advancement of substantive trademark law and practice.

Mr. Seiter is chair of the East Asia and Pacifi c Subcommittee of the Legislation and Regulation Committee. He and his subcom-mittee tackled a tremendous amount of work in a single year: they handled legislative issues in Indonesia, Malaysia, New Zealand and Vietnam and dealt with proposed amendments to the Canadian trademark regulations, the Chinese Unfair Competition Law and the Korean Trademarks Act.

Left to right: William Seiter, Tiki Dare, Joseph Norvell, James McCarthy, Stephen Bullock, Susan Brady Blasco, Mark Kudlacik, Zhen Feng

www.inta.org Vol. 61, No. 22 3

INTA Leadership Meets in Phoenix“Meeting the Needs of Trademark Owners” was the theme of the 2006 Leadership Meeting, held November 8 – 11, 2006, in Phoenix, Arizona, USA. For the more than 1100 INTA volunteers from around the world in attendance, the meeting’s group sessions and educational offerings were guides not only to meeting those needs but to leading colleagues, clients and co-workers in providing improved trademark protection.

A highlight was the presentation by keynote speaker Steve Farber, president of Extreme Leadership Inc. Mr. Farber spoke about the importance of putting love and energy into one’s work and the need to take appropriate risks—themes that speakers echoed throughout the following sessions.

Incoming 2007 President Dee Ann Weldon-Wilson in-troduced her vision for 2007, which includes task forces that will focus on India and Latin America, as well as a task force looking at the very long term future of the Association and of trademark law. Anticounterfeiting efforts and protection of nontraditional marks are two of the many topics that also will be important next year.

As always, committee meetings—both formal and informal—were a signifi cant part of the event. After business hours, members made the most of their stay in Phoenix. “We introduced some new features to the meeting structure, and they appear to have been well-received by the attendees,” said meeting Co-Chairs Jody Drake and David Moyer. “We thank INTA staff, the moderators, panelists and activities chair-persons for all their hard work which contributed to the suc-cess of the meeting.”

Pictured above are 2006 Leader-hip Meeting Co-Chairs David Moyer, of The Procter & Gamble Company in Cincinnati, Ohio, USA, and Jody Drake, of Sughrue Mion PLLC in Washington, D.C.

Steve Farber, left, presented the keynote speech on effective leadership. A panel discussion on leadership in trademark practice followed, in which Mr. Farber was joined by Anne Chasser (seated right), of the University of Cincin-nati, Ohio, USA, and INTA Past President, and Miles Alexander (seated center), of Kilpatrick Stockton LLP in Atlanta, Georgia, USA, and INTA Past Counsel. Holland Cambell (seated left), of ESPN Inc. in West Hartford, Connecticut, USA, moderated the panel.

Representing Trademark Owners Since 1878December 1, 20064

Association News2006 Annual Meeting of MembersINTA President Paul W. Reidl called the 2006 Annual Meeting of Members to order at 8:00 a.m. on Wednesday, November 8, 2006, at the JW Marriott Desert Ridge Resort & Spa in Phoenix, Arizona, USA.

Vice President Rhonda Steele reported that Secretary Gerhard R. Bauer had certifi ed that offi cial notice of the Annual Meeting had been mailed to all Regular Members on October 12, 2006. Larisa Murphy Colton moved that the notice be fi led with the minutes of the meeting, and Susan Hinchey seconded the motion. After Mr. Reidl called for discussion and a voice vote, the motion carried.

In Mr. Bauer’s absence, Ms. Steele reported that of the 852 Regular Members, a quorum as defi ned by the Association’s bylaws was present in person or by proxy. Mr. Reidl declared the meeting regularly and lawfully convened and open to transact business. He reported that the minutes of the 2005 Annual Meeting of Mem-bers had been published and circulated to members, and asked for requests for amendments or corrections. No such requests were made. Mr. Reidl called for a motion that the minutes be approved as published. Ms. Hinchey moved that the minutes be approved, and Ms. Colton seconded the motion. After Mr. Reidl called for discussion and a voice vote, the motion carried.

Mr. Reidl called Treasurer Heather C. Steinmeyer to report on the Association’s fi nancial affairs. Ms. Steinmeyer presented her report (see “2006 Treasurer’s Report, ” next column). Mr. Reidl called for a motion that the treasurer’s report be approved as read. Ms. Hinchey moved that the report be approved, and Ms. Colton seconded the motion. After Mr. Reidl called for discussion and a voice vote, the motion carried.

Mr. Reidl stated that the president’s report on INTA activities during 2006 would be presented at the opening ceremonies of the INTA Annual Meeting, at 5:00 p.m. on April 29, 2007, at Mc-Cormick Place Chicago in Chicago, Illinois, USA.

Nominating Committee Chair Anne Gundelfi nger presented the Nominating Committee’s report. Mr. Reidl reported that there were no nominations for elected positions other than those that had been made by the Nominating Committee. Ms. Steele moved that a single vote be cast to elect the Nominating Committee’s slate of candidates to the INTA Board of Directors, and Ms. Hinchey seconded the motion. After Mr. Reidl called for discussion and a voice vote, the motion carried. See “2006 Nominating Committee Report” on p. 5.

Mr. Reidl asked for a motion to ratify, approve and confi rm the acts of the INTA Board of Directors and offi cers in furtherance of the matters undertaken by them in the past year and reported to Association members. Ms. Colton so moved, and Ms. Hinchey seconded the motion. After Mr. Reidl called for discussion and a voice vote, the motion carried.

Mr. Reidl asked if there was any new business. There was no new business. Mr. Reidl asked for a motion to adjourn. Ms. Colton so moved, and Ms. Hinchey seconded the motion. After Mr. Reidl called for discussion and a voice vote, the motion car-ried.

I am pleased to report that your Association had a fi nancially suc-cessful 2006 and will be able to add to its reserves, which provide a cushion against unforeseen events and a source of funding for new programs and member benefi ts. The 2006 budget, adopted by the Board of Directors in November 2005, projected net revenue (total revenue minus total expenses) of USD 250,000. Due to increased attendance at the Annual Meeting in Toronto, increased revenue from membership, interest and dividend income and second list-ings in the Membership Directory—offset slightly by an increase in expenses over budget as a result of the additional costs attribut-able to the higher attendance at the Annual Meeting—net revenue is expected to exceed USD 1,000,000.

The value of the investment portfolio has increased, and at nine months the realized and unrealized gain is USD 180,000. There is, of course, no guarantee that gains will continue through the end of the year.

During 2006, the Finance Committee undertook two signifi -cant projects related to the fi nances of the Association. First, the Committee revised the Investment Policy, which (1) defi nes the roles and responsibilities of the Finance Committee, the Invest-ment Consultant, currently Smith Barney, and the Investment Managers selected by Smith Barney to manage INTA’s portfo-lio; and (2) sets out the investment philosophy and the specifi c parameters applicable to the portfolio. The Finance Committee adopted the revised Investment Policy at its meeting in September. Secondly, we undertook an analysis to determine the appropriate size for the reserve fund that INTA maintains to offset unexpected expenses and fund new initiatives. The Committee’s recommenda-tion will be discussed at the Board meeting later today (November 8, 2006).

The 2007 budget will be presented to the Board of Directors today as well, and it contemplates net revenue of roughly USD 250,000. Membership revenue is budgeted to increase by 3 percent over the actual amount collected in 2006. Attendance for the 2007 Annual Meeting in Chicago is budgeted to be approximately 7700. There will be a number of other programs as well, including fi ve e-learning programs: U.S. Trademark Basics, TTAB, Madrid 101, Ethics and TMA Basics. The globalization of INTA continues in 2007, with programs planned for Brussels, Brazil, Portugal and China, as well as numerous roundtables internationally.

The current online publications— Country Guides, Interna-tional Oppositions and Madrid Protocol—will be updated, with Cancellations expected to be added in 2007. Also, the Chinese-language Bulletin successfully introduced in 2006 will be contin-ued on a quarterly basis in 2007. INTA opened its new Brussels offi ce in October of 2006, which joins our China representative offi ce and our consultants in Washington, D.C. and Geneva.

Behind all of these activities is the dedication to improving member benefi ts.

It has been an honor to work with the offi cers, committee mem-bers, membership and the staff as Treasurer, and I am confi dent in the continuing progress of your Association.

INTA Treasurer Heather C. Steinmeyer, Blue Cross & Blue Shield Associa-tion, Chicago

2006 Treasurer’s Report

www.inta.org Vol. 61, No. 22 5

2006 Nominating Committee Report

MEMBERSHIP DIRECTORY2006 – 2007

International Trademark AssociationRepresenting Trademark Owners Since 1878

Did you know that you can order additional copies of the print 2006 – 2007 INTA Membership Directory?Make sure you and your colleagues are always connected to INTA’s members by using one of these convenient methods to order:

1. Visit INTA’s online Publications Catalog at www.inta.org/go/catalog 2. Visit INTA’s online Membership Directory at www.inta.org/apps/member_directory 3. Use the order form found inside every copy of the Directory.

Don’t delay, supplies are limited. Order now!

Newly Elected DirectorsTerm Ending December 31, 2007Gerhard R. Bauer, DaimlerChrysler AG (Germany)Richard Heath, Unilever P.L.C. (UK)Rhonda Steele, Mars, Incorporated (Australia)Heather Steinmeyer, Blue Cross and Blue Shield Association (USA)Dee Ann Weldon-Wilson, Exxon Mobil Corporation (USA)

Term Ending December 31, 2009David Cho, AT&T Services, Inc. (USA)Sherri Dratfi eld, PR Newswire Association LLC (USA)Debra Greene, Merck & Co., Inc. (USA)Deborah Hampton, Limited Brands Inc. (USA)Carolyn Knecht, Motorola, Inc. (USA)Ellen Shankman, Ellen Shankman & Associates (Israel)Renee Simonton, Reed Elsevier IP Management Services Inc. (USA)Patrick Van de Vorst, IQS AvantIQ (Luxembourg)

Directors Continuing to ServeTerm Ending December 31, 2007Hugo T. Berkemeyer, Berkemeyer, Attorneys & Counselors (Paraguay)Belinda I. Berman, United States Golf Association (USA)Sara B. Blotner, Citigroup Inc. (USA)Larisa Murphy Colton, YUM! Restaurants International (USA)Mary A. Francis, Chevron Corporation (USA)Marion Heathcote, Davies Collison Cave (Australia)Lucy Nichols, Nokia Corporation (USA)Bret I. Parker, Wyeth (USA)Kate Rundle, MIPS Technologies, Inc. (USA)

Lori Schulman, March of Dimes (USA)Sandra A. Sellers, Technology Mediation Services, LLC (USA)Célia Ullmann, Philip Morris International Management SA (Switzerland)

Term Ending December 31, 2008Pravin Anand, Anand & Anand Advocates (India)Laura Covington, Yahoo! Inc. (USA)John Crittenden, Cooley Godward LLP (USA)J. Scott Evans, Adams Evans P.A. (USA)Rose Hagan, Google (USA)Frances Jagla, Microsoft Corporation (USA)Gregg Marrazzo, Kimberly-Clark Corporation (USA)Helen Minsker, Banner & Witkoff, Ltd. (USA)Gordana Pavlovic, Cabinet Pavlovic (Belgium)Iris Quadrio, Marval, O’Farrell & Mairal (Argentina)Mei-lan Stark, Fox Entertainment Group (USA)Mariette Viljoen, Adams & Adams (South Africa)

Offi cers and CounselThe Board elected the following offi cers and counsel for 2007:

President: Dee Ann Weldon-Wilson, Exxon Mobil Corporation (USA)President Elect: Rhonda Steele, Mars, Incorporated (Australia)Vice President: Richard Heath, Unilever P.L.C. (UK)Vice President: Heather Steinmeyer, Blue Cross and Blue Shield Association (USA)Treasurer: Gerhard R. Bauer, DaimlerChrysler AG (Germany)Secretary: Gregg Marrazzo, Kimberly-Clark Corporation (USA)Counsel: David H. Bernstein, Debevoise & Plimpton LLP (USA)

Ex offi cio: Paul W. Reidl, E. & J. Gallo Winery (USA)

On November 8, 2006, at INTA’s Leadership Meeting in Phoenix, Arizona, USA, the Association’s Voting Members elected the following people to the INTA Board of Directors:

Representing Trademark Owners Since 1878December 1, 20066

FeaturesBovemij CONTINUED FROM PAGE 1

that language was an offi cial language.In its amicus brief, INTA advocated the position that under

Benelux trademark law, distinctive character (secondary meaning) could be acquired as a result of the use made of a trademark if it was regarded as a trademark by the relevant sector of the public in a substantial part of the Benelux territory, and put forward that such substantial part could be the Netherlands alone.

The ECJ answered as follows:

Article 3(3) of Directive 89/104/EEC must be interpreted as meaning that the registration of a trade mark can be al-lowed only if it is proven that that trade mark has acquired distinctive character through use throughout the territory of the Member State or, in the case of Benelux, throughout the part of the territory of the Benelux in which there exists a ground for refusal.

As regards a mark consisting of one or more words of an offi cial language of a Member State or of Benelux, if the ground for refusal exists only in one of the linguistic areas of the Member State or, in the case of Benelux, in one of its linguistic areas, it must be established that the mark has acquired distinctive character through use throughout that linguistic area. In the linguistic area thus defi ned, it must be assessed whether the relevant class of persons, or at least a signifi cant proportion thereof, identifi es the product or service in question as originating from a particular under-taking because of the trade mark.

The general rule, established in Stork v. OHIM (ECJ 22 June 2006, C-25/05 P, paragraph 83), is that distinctive character must be acquired throughout the entire territory of a Member State. In Bovemij, the ECJ has now clarifi ed that, regarding the Benelux, it is suffi cient if the distinctive character is acquired throughout the part of the territory of the Benelux where a ground for refusal ex-ists. This different approach is probably warranted by the fact that the Benelux has different language areas.

In the last part of the reply, the ECJ added that if the grounds for refusal exist solely on linguistic grounds, it must be established that the mark has acquired distinctive character throughout the rel-evant linguistic area. For that purpose, it must be assessed whether a signifi cant portion of the relevant public perceives the trademark as identifying the product or service in question as originating from a particular undertaking.

The ruling differs from the Opinion of the Advocate General on which we reported in the May 1, 2006 INTA Bulletin (Vol. 61 No. 9). The Advocate General was of the opinion that a trademark could only be registered when it could be shown that the mark had acquired distinctive character through use throughout the relevant linguistic community. The ruling of the ECJ implies that it may be possible to register a trademark that has acquired distinctiveness only in a substantial part of a linguistic area.

It should be noted that on many of its main points, the ECJ’s decision was in line with INTA’s submission, available online at www.inta.org/downloads/brief_Bovemij.pdf.

By: Wolter Wefers Bettink, Houthoff Buruma, Amsterdam, Nether-lands

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www.inta.org Vol. 61, No. 22 7

On September 21, 2006, the Civil and Commercial Federal Court of Appeals of the City of Buenos Aires, Division III, upheld the decision of the fi rst instance court in Mastellone Hnos. S.A. v. Mariana Bustillo, which had ordered the temporary assignment to the plaintiff of the domain name fortuna.com.ar. The plaintiff, a dairy products company, based its claim on the ownership of trademark registrations for FORTUNA in several classes, including Class 29, for dairy products.

Mastellone fi led a motion seeking a preliminary injunction against Ms. Bustillo, arguing that since she owned about 50 domain names (some of them including third parties’ trademarks or generic names of products or services), she had registered the domain name fortuna.com.ar in bad faith and with the ultimate intention of selling it for consideration. The plaintiff further argued that the registration of the domain name fortuna.com.ar constituted an undue use of its trademark FORTUNA.

Ms. Bustillo argued that Mastellone’s mark was not well known and that the word “fortuna” (“fortune” in English) could be understood as a reference to many different things—many not necessarily connected with the plaintiff ’s trademark (e.g., “luck,” the name of a city in the Argentine province of San Luis or third parties’ trademarks not related to the dairy industry). Ms. Bustillo further stated that Mastellone could use other domain names for an Internet presence (e.g., lechefortuna.com.ar or lacteosfortuna.com.ar).

The fi rst instance court granted Mastellone’s motion, and the court of appeals affi rmed.

In connection with the fi rst condition for the granting of a preliminary injunction, namely, that the plaintiff must have a colorable claim, the appellate court held that even if the defendant was involved in the design and sale of web pages—which was in any case an unsupported statement—she was not per se entitled to register a domain name identical to the plaintiff ’s mark. The court also found that the mark FORTUNA had been registered and used in the market by the plaintiff before the date of the domain name registration.

With regard to the second condition, namely, the likelihood of irreparable harm unless the injunction is granted, the court held that the right to register a domain name identical to a trademark belongs fi rst and foremost to the party that can demonstrate a le-gitimate interest therein (Mastellone, in this case). It also ruled that the defendant had unlawfully prevented the plaintiff from exercis-ing its right to use and register its trademark as a domain name, pointing to the potential damage to Mastellone that this situation could represent in light of the widespread use of the Internet.

Contributor: Diego Laurini, De las Carreras & Chaloupka, Buenos Aires; Verifi er: Pablo Wegbrait, Kors, Noviks & Asociados, Buenos Aires

ARGENTINA

Owner of Prior TrademarkRegistration Prevails on InjunctionAgainst Domain Name Registration On July 18, 2006, the Federal

Court of Canada held in Ra-tiopharm Inc. v. Laboratoires Riva Inc. (2006 FC 889) that Ratiopharm’s registered trademark CALMYLIN was not infringed by Laboratoires Riva’s use of the trademark DAMYLIN. In doing so, the court analyzed confusion among health professionals and fi nal consumers with re-spect to “behind-the-counter” products.

Ratiopharm used the trademark CALMYLIN in

association with both a prescription-only and a behind-the-coun-ter cough syrup. The behind-the-counter product was available after consultation with a pharmacist and, although not necessary, was sometimes obtained by a doctor’s prescription. Riva sold its DAMYLIN product as a behind-the-counter cough syrup, and the nature of the wares, business and trade was held to be identical.

In analyzing the potential for confusion, the court reviewed recent Supreme Court of Canada cases and referred to the “casual consumer somewhat in a hurry” confusion test. The court went on to note that in this case three persons had to be considered as the mythical consumer—the doctor, the pharmacist and the fi nal consumer.

The court noted that the consumer, when purchasing a behind-the-counter product, had to go through either a doctor and a phar-macist or only a pharmacist, and such professionals could not “be taken to be in such a hurry as to put the health of the consumer at risk.” Specifi cally, it was found that doctors and pharmacists were less likely to be in a hurry than purchasers of mid-priced meals or dresses (as in the reviewed Supreme Court of Canada cases).

With respect to the fi nal consumer, the Federal Court of Can-ada held that on a balance of probabilities there was no likelihood of confusion between CALMYLIN and DAMYLIN in the mind of the average consumer. Specifi cally, the court found that, even if hurried, a doctor or pharmacist would likely draw distinctions between various medicines to the consumer’s attention.

The case is important because it suggests that health profession-als who are consumers are less likely to be in a hurry, and presum-ably less likely to be confused, when prescribing or dispensing behind-the-counter products.

Contributor: Heather Robertson, Smart & Biggar, Toronto; Verifi er: Michelle Wassenaar, Johnston Wassenaar LLP, Toronto

CANADA

Health Professionals May BeLess Likely to Be Confused

Law and Practice

Representing Trademark Owners Since 1878December 1, 20068

Law and Practice

In Attorney General (Quebec) v. St-Germain Transport (1994) Inc., the Provincial Court of Quebec reviewed the impact of the Charter of the French Language on an unregistered trademark. St-Germain Transport was charged with contravening the Charter, since its trucks were lettered with the expression COAST TO COAST SERVICES in English only.

In the Province of Quebec, the Charter requires that every inscription on a product, on its container or packaging or on a document or object supplied with the product be in French. The French inscriptions may be accompanied by a translation, but no inscription in any other language may be given greater prominence than the inscription in French. In the case of signs and advertis-ing, the requirement is that the French version be accorded greater prominence than the English version.

One of the exceptions to the mandatory use of French exists where the inscription is a recognized trademark within the mean-ing of the Canadian Trade-marks Act, unless the French version has been registered. Until recently, the scope of what constituted a recognized trademark had not been considered by the court in the context of the Charter, but it was generally agreed that the excep-tion extended to both registered and unregistered trademarks.

Since St-Germain was able to demonstrate that COAST TO COAST SERVICES had been used in advertising its services, namely, “intraprovincial and international transportation of goods,” since the 1970s, the court held that the expression was in fact a recognized trademark despite its unregistered status. As a result, St-Germain was exempt from using a French version of COAST TO COAST SERVICES.

Contributor: Katherine Dimock, Gowlings, Ottawa, Ontario; Verifi er: Geneviève M. Prévost, Smart & Biggar, Toronto, Ontario

CANADA

Unregistered Trademark Exempt from Charter of the French Language

On July 27, 2006, in the nullity and reestablishment of rights action Fiat v. Trademark Offi ce, the State Council determined that similar marks may be registered in the same class under certain circumstances.

Article 136 of Decision 486 of the Andean Pact states that no mark similar to another may be registered under the same classifi cation of goods and services, as it can lead to confusion among consumers. The Trademark Offi ce followed this decision and denied the trademark registration for SIENA, fi led by car manufacturer Fiat. This denial was based on the grounds that the prior-registered mark S SENNA, registered in the same class, was considered to be phonetically and visually similar.

The State Council reversed this decision. It found that the two marks coexisted in other countries without any confusion. The Council did not see why the present case would be any different. It also established that the marks depicted different concepts: the fi rst referred to the principal domicile of the registrant (Siena, Italy), while the second referred to the last name of a famous Brazilian racecar driver (Ayrton Senna). The State Council determined that these references could be easily differentiated by consumers shopping for cars and would not cause confusion. Thus the second mark could be registered.

The State Council has set a precedent for when specifi c facts can lead to an exception to the rule. In doing so, the Council protected both the legitimate rights of a trademark owner and consumers as well.

Contributor: Felipe Rubio, Humberto Rubio & Co. Lawyers, Bogotá; Verifi er: Luz Helena Adarve, Cardenas & Cardenas, Bogotá

COLOMBIA

State Council Determines WhenSimilar Marks May Be Registered

On August 24, 2006, the General Directorate of Intellectual Property Rights of the Palestinian Ministry of National Economy issued a statement that all powers of attorney used for IP registra-tion had to be legalized up to the Palestinian Representative Offi ce or the Ministry of Foreign Affairs in the relevant country, effective September 1, 2006.

According to the General Directorate of Intellectual Property Rights, the Trademarks Offi ce reversed the decision. In order to fa-cilitate and simplify the trademark fi ling process, starting October 1, 2006, all powers of attorney submitted to the Trademarks Offi ce need only be signed and stamped by an authorized signatory, as was previously the case.

Contributor: Hala Shamlawi, Abu-Ghazaleh Intellectual Property, Amman, Jordan; Verifi er: Manar Bashir, Abu-Ghazaleh Intellectual Property, Gaza, Palestine

PALESTINE

Powers of Attorney Procedures Simplified

www.inta.org Vol. 61, No. 22 9

In the United States, the question of a domain name registrar’s liability is addressed clearly by law. The Anticybersquatting Con-sumer Protection Act (ACPA) states that a registrar shall not be liable for monetary penalties for registering or maintaining a do-main name that reproduces a trademark unless there is conclusive evidence that such registrar acted in bad faith with the intention of profi ting from those activities.

No similar provision exists under European or French law. Nev-ertheless, a French court tribunal recently addressed this question, with surprising fi ndings.

The Paris First Instance Court held in Société Rue du Com-merce v. Société Brainfi re Group – Moniker Online Service (Or-donnance du Président du Tribunal de Grande Instance de Paris, April 10, 2006) that Moniker Online Service, a U.S. registrar, was jointly and severally liable with its client for the costs and fees of the proceedings, even though it was not involved in the illegal activity for which its client was sued.

The case involved the French company Rue du Commerce, owner and user of various domain names, including www.ruedu-commerce.com and www.larueducommerce.com. Brainfi re Group registered with registrar Moniker Online Service two similar but misspelled domain names, rueducommerc.com and rueducom-mrece.com.

Rue du Commerce brought proceedings against Moniker and

FRANCE

Domain Name Registrar Found Financially Liable

In order to provide services more effi ciently and in a more cus-tomer-friendly manner, the Omani Trademark Offi ce has recently made substantial efforts to speed up and simplify trademark registration procedures.

The new procedures focus on minimizing the time needed to register a trademark. Although no offi cial statement has been issued, examination reports related to newly fi led trademark ap-plications are now issued within one month of the fi ling date. Afterward, publication in the Offi cial Gazette will take place within four months, and, in the absence of an opposition or an offi ce action, the registration certifi cate will be issued within one year of the fi ling date.

Formerly, the time frame for registration of a trademark in Oman ranged from four to six years.

Applicants are encouraged to submit a legalized power of at-torney and a certifi ed copy of the commercial registration/incorpo-ration certifi cate upon fi ling or immediately afterward in order to ensure a smooth registration process.

Contributor: Hala Shamlawi, Abu-Ghazaleh Intellectual Property, Amman, Jordan; Verifi er: Hazem H. Abu Ghazaleh, Abu-Ghazaleh Intellectual Property, Muscat, Oman

OMAN

Trademark Office Speeds Up Registration Formalities

r e n e w y o u r m e m b e r s h i p b e f o r e 2 0 0 7 !

December 31, 2006 is the deadline to renew your INTA membership so that you can continue to receive benefi ts such as:

• A listing in the 2007 – 2008 INTA Membership Directory • Subscriptions to the INTA Bulletin and The Trademark Reporter® • Exclusive access to online trademark resources available FREE to members only • Discounts on publications and educational programs • Networking opportunities and involvement with INTA committees

If you are the INTA designee for your organization, you can renew your membership now at www.inta.org, where you can also print an invoice, add or delete employees from your organization and modify your contact information.

Questions? Email membershiprenewal@inta.org, call +1-212-768-9887 ext. 1725, or fax +1-212-768-1234.

Thank you for your continued membership and participation in the INTA community

Brainfi re. Both defendants failed to appear before the court, and a default judgment was issued. The court ordered Brainfi re to pay Rue du Commerce damages amounting to EUR 25,000 and or-dered Moniker to suspend access to the infringing domain names.

The court also held Brainfi re and Moniker jointly and severally liable for the fees and costs of the proceeding, amounting to EUR 8,000. Hence, even if not liable for the illegal activity of its client, a registrar could nevertheless be held fi nancially liable and have to pay the entire costs and fees of the case.

This conclusion is in contrast to a pre-ACPA case in which the U.S. Court of Appeal for the Ninth Circuit held that a registrar was not liable on the basis that it did not supply the domain name combination any more than the U.S. Postal Service supplies a street address by performing the routine service of routing mail. Lockheed Martin Corp. v. Network Solutions Inc., 194 F.3d 980 (9th Cir. 1999).

Foreign registrars should therefore pay special attention to lawsuits launched against their clients and themselves before the French courts and should not fail to attend. Otherwise, they could ultimately be held liable to pay for the actions of their clients.

Contributor: Nathalie Dreyfus, Cabinet Dreyfus & Associés, Paris; Verifi er: Vanessa Bouchara, Cabinet Bouchara – Avocats, Paris

Representing Trademark Owners Since 1878December 1, 200610

Pharmachoice Healthcare (Pty) Ltd. instituted proceedings against Nutrilida Healthcare (Pty) Ltd., alleging that its use of the mark

VIRALGUARD constituted an infringement of Pharmachoice’s registered trademark VIRALCHOICE and further that the trade dress of Nutrilida’s VIRALGUARD products constituted passing off at common law.

In its unreported decision dismissing the trademark infringe-ment claim, the High Court of South Africa, Transvaal Provincial Division, maintained that the marks VIRALCHOICE C and VIRALGUARD were not so similar as to deceive or cause confu-sion. The court did, however, uphold the claim of passing off. After considering all aspects of the packaging, the court found that Pharmachoice’s product had acquired a reputation “not so much in the orange and green used on its packaging but rather in the combination of these colours with all other features constitut-ing the get-up of the product.” Comparing certain features of the two products, such as the size and measurements of the packaging and the presentation, positioning, font and dominant parts of the trade names, the High Court concluded that the overall impres-sion created by the products was confusingly similar. The court also confi rmed that use of the word “New” on the VIRALGUARD packaging created the impression of not merely a new product on the market but rather an improvement to an existing or earlier product of the same make and manufacture.

Nutrilida was enjoined and restrained from passing off its VI-RALGUARD products as being those of Pharmachoice.

Contributor: Donvay Wegierski, Jan S. De Villiers, Cape Town; Veri-fi er: Suzaan Laing, Adams & Adams, Cape Town

Law and PracticeSOUTH AFRICA

Confusingly Similar Color Combination Constitutes Passing Off

In Quiksilver, Inc. v. Kymsta Corp, No. 04-55529 (9th Cir. Oct. 6, 2006), the U.S. Court of Appeals for the Ninth Circuit broke with the Sixth Circuit and the Federal Circuit and found that tacking—the doctrine whereby a mark owner is entitled to “tack” the date of fi rst use of one mark onto another, later mark—was a question of fact, not law.

Quiksilver fi led a trademark infringement lawsuit against Kymsta, alleging that Kymsta’s ROXYWEAR mark was confus-ingly similar to Quiksilver’s marks ROXY and QUIKSILVER ROXY. Kymsta’s ROXYWEAR mark had fi rst been used in Janu-ary 1992, after Quiksilver introduced the mark QUIKSILVER ROXY but before Quiksilver fi rst used the mark ROXY by itself. Ruling on cross-motions for summary judgment, the trial court found that under the doctrine of tacking, Quiksilver’s ROXY mark was entitled to the benefi t of the fi rst-use date of the earlier mark QUIKSILVER ROXY, and thus had priority over Kymsta’s mark ROXYWEAR.

The Ninth Circuit reversed the decision, fi nding that the trial court had erred in deciding tacking as a matter of law rather than of fact. The appellate court fi rst noted that tacking usually is per-mitted “only in the exceptionally narrow instance where the previ-ously used mark is the legal equivalent of the mark in question or indistinguishable therefrom such that consumers consider both as the same mark.” It then observed that the Federal Circuit—upon which the trial court had relied—had determined that tacking was a question of law by comparing the issue to that of likelihood of confusion, which the Federal Circuit also considered to be a question of law. The Ninth Circuit accepted the Federal Circuit’s analogy, but held that because under Ninth Circuit precedent likelihood of confusion was a question of fact, the issue of tacking would also be a question of fact. The court found that reasonable minds could differ on whether consumers considered the ROXY and QUIKSILVER ROXY marks to be the same at the time the ROXY brand was introduced, and ruled that the issue was there-fore one for the jury.

Contributor: Kevin W. Grierson, Willcox & Savage P.C., Norfolk, Vir-ginia; Verifi er: Michael J. Mlotkowski, Roberts Mlotkowski & Hobbes P.C., McLean, Virginia

UNITED STATES

Ninth Circuit Breaks with Sixth and Federal Circuits on “Tacking”

www.inta.org Vol. 61, No. 22 11

INTA Bulletin BoardHeidi Jensen and Mervyn Valadares, formerly of MBM & Co., have formed the fi rm Valadares Law Group LLP in Ottawa, Ontario, Canada. The new fi rm’s practice focuses exclusively on intellectual property law.

The “INTA Bulletin Board” announces job changes or other signifi cant career news about individuals who belong to INTA organizations. To submit an item for consideration, send a brief message to bulletin@inta.org.

The complex proceedings involving the HAVANA CLUB mark in the United States continue. The October 15, 2006 INTA Bulletin (Vol. 61 No. 19) reported that on August 3, 2006, the U.S. Patent and Trademark Offi ce (USPTO) refused to permit Empresa Cu-bana Exportadora de Alimentos y Productos Varios (Cubaexport), a Cuban state-run company, to renew its U.S. registration for the mark HAVANA CLUB & Design, because the U.S. government’s Offi ce of Foreign Asset Control (OFAC) had denied Cubaexport a license under the Cuban Asset Control Regulations (CACR) to pay the renewal fee.

On September 29, Cubaexport brought suit against OFAC, challenging the OFAC decision and the 1998 law that prohibits approval of certain payments under the CACR. On October 4, Cubaexport fi led a petition with the USPTO Director, requesting reversal of the refusal to renew the HAVANA CLUB registration.

Counsel for Cubaexport and Pernod Ricard USA have advised that the August 15, 2006, lawsuit against Bacardi reported in the October 15 Bulletin was fi led by Pernod Ricard USA, not a French entity. That suit alleges that Bacardi has engaged in deceptive advertising and seeks a prohibition against Bacardi employees’ alleged misrepresentations to the media. The suit does not include a trademark infringement claim, as reported in the earlier Bulletin article.

Finally, counsel for Cubaexport and Pernod Ricard USA take issue with the statement in the October 15 Bulletin article that “U.S. courts have consistently found that the Cuban govern-ment has no rights in the HAVANA CLUB mark.” They point to Havana Club Holding, S.A. v. Galleon, S.A., 974 F.Supp. 302 (S.D.N.Y. 1997) and Galleon S.A. v. Havana Club Holding, S.A., Cancellation No. 92024108 (T.T.A.B. 2004).

In the case in the Southern District of New York, Cubaexport’s assignment of the HAVANA CLUB mark to other entities partially owned by the Cuban government was found to be invalid. Cuba-export was not a party to that case, however, and in that situation the court determined that Cubaexport was “restored as the owner” of the HAVANA CLUB registration. 974 F.Supp. at 311.

In the Trademark Trial and Appeal Board (TTAB) case, the TTAB declined to determine whether Cubaexport was the true and legitimate owner of the HAVANA CLUB mark. The TTAB regarded such a determination as a “political question” and consid-ered that it, “as a tribunal within the U.S. Department of Com-merce, [did] not have the authority to answer this question.”

Bacardi appealed the TTAB decision to the District Court for the District of Columbia in 2004 and has since moved to stay that action pending a fi nal decision on Cubaexport’s request that its registration be renewed in the USPTO.

UNITED STATES

Challenges Filed Against Refusal to Renew HAVANA CLUB Registration

Welcome New MembersAvocado Rechtsanwaelte, Munich, Bavaria, Germany; Comm-scope, Hickory, NC, USA; De Keersmaeker Vromans, Brussels, Belgium; Deutsch, Levy & Engel, Chtd., Chicago, IL, USA; Fannie Mae, Washington, DC, USA; Gorrissen Fenderspiel Kierkegaard, Copenhagen, Denmark; Illuminor LLC, Spice-wood, TX, USA; IP Australia, Phillip, ACT, Australia; Jennifer Ann Gaeta, Attorney at Law, Eatontown, NJ, USA; Kofax Image Products Inc., Irvine, CA, USA; Mackenna, Irarrazaval, Cuchacovich & Paz, Santiago, Chile; Metro AG, Dusseldorf, Germany; Morishita Law Firm, LLC, Las Vegas, NV, USA; Po-mare LTD, Honolulu, HI, USA; Roland & Douglas, Barcelona, Spain; Russin & Vecchi LLC, International Legal Counselors, Moscow, Russia; Schmidt Brunet & Associes, Paris, France; Shell Canada Limited, Calgary, AB, Canada; The Western Union Company, Englewood, CO, USA; Ultrashape Ltd., Tel-Aviv, Israel; Van Bael & Bellis, Brussels, Belgium; Whitehall Bureau of Canada Limited, Hamilton, ON, Canada

Munich, GermanyTopic: Current Case Law Regarding Community Trade Marks

December 19, 20066:00 p.m.

Location of roundtable: Kador & PartnerCorneliusstrasse 1580469 Munichwww.kadorpartner.de

Hosts:Kador & Partner, Munich

Guest Speakers:Mr. Achim Bender, Member of the Boards of Appeal, OHIM

For registration details, please contact Barbara Regensburger at mail@intellectualproperty.deFor registration details, please contact Barbara Regensburger at mail@intellectualproperty.de

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International Trademark Association655 Third Avenue, 10th FloorNew York, NY 10017 USA+1-212-768-9887 • f: +1-212-768-7796www.inta.org • info@inta.org

January 15 – 30, 2007Roundtable: Legal Issues in Marketing and AdvertisingVarious U.S. cities

January 28 – 30, 2007Trading Ideas: The Future of IP in Asia-Pacifi cINTA is an associate sponsor of this APEC/IP Australia eventSydney, Australia

January 30 – 31, 2007Third Global Congress on Counterfeiting and PiracyGeneva, Switzerland

February 19 – March 2, 2007Trademark Administrator Roundtable: Internet Policing,Metatags and Domain Name EnforcementVarious U.S. cities

February 26 – 27, 2007In-House Trademark Counsel’s Workshop – U.S.New York, New York

March 10 – 14, 2007INTA– ASIPI ConferenceSão Paulo, Brazil

March 15 – 30, 2007Trademark Administrator Workshop: AnticounterfeitingVarious U.S. Cities

June 4, 2007INTA/OHIM Conference 2007Brussels, Belgium

INTA BULLETIN COMMITTEETo contact a member of the INTA Bulletin Committee, send an email to the managing editor at bulletin@inta.org.

ChairMary DeLongis, Nautica Enterprises, Inc.

Vice ChairKay Rickelman, Spoor & Fisher

Feature Articles: Member Benefi ts & ServicesPatrick Gallagher, Fulbright & Jaworski L.L.P.

Feature Articles: Policy & PracticePatricia Wilczynski Brozek, Wilczynski Brozek Law

Law & Practice: AmericasJanice Housey, Roberts, Mlotkowski & Hobbes, P.C.

Law & Practice: Asia-Pacifi cLindsay Esler, Deacons

Law & Practice: Europe and Central AsiaClaus Eckhartt, Bardehle Pagenberg Dost Altenburg Geissler

Law & Practice: Middle East and AfricaStephen Goldberg, Spoor & Fisher

STAFFExecutive DirectorAlan C. Drewsen, International Trademark Association

Director, Publishing Randi Mustello, International Trademark Association

Managing Editor, INTA BulletinJames F. Bush, International Trademark Association

Associate Editor, INTA BulletinJoel L. Bromberg, International Trademark Association

Designer Jesse Riggle, International Trademark Association

OFFICERS & COUNSELPresidentPaul W. Reidl, E. & J. Gallo Winery

President ElectDee Ann Weldon-Wilson, Exxon Mobil Corporation

Vice PresidentRhonda Steele, Mars, Incorporated

Vice PresidentRichard Heath, Unilever P.L.C.

TreasurerHeather C. Steinmeyer, Blue Cross and Blue Shield Association

SecretaryGerhard R. Bauer, DaimlerChrysler AG

CounselDavid H. Bernstein, Debevoise & Plimpton LLP

INTA Department Email AddressesExecutive Director: executivedirector@inta.orgAdministration & Finance: adminfi nance@inta.org Customer Service: customerservice@inta.orgPrograms: meetings@inta.orgINTA Bulletin: bulletin@inta.orgJob Bank: jobbank@inta.orgMembership: membership@inta.orgPublications: publications@inta.orgPublic Policy: tmaffairs@inta.orgPublic Relations: publicrelations@inta.orgRoundtables: roundtables@inta.orgSponsorship & Exhibitions: sponsorship@inta.orgThe Trademark Reporter®: tmr@inta.org

© 2006 International Trademark Association

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