Write an article on Intellectual Property Law: Trademark. It needs to be at least 4000 words. Not entirely agreeing with the High Court’s position, the Court of Appeal did not decide on some issues when the case was appealed to it and instead referred them to the European Court of Justice. In 2009, the ECJ held that the use of comparative lists amounts to unfair advantage if they use the marks of a competitor so as to advertise its own products. Seemingly disliking this ruling, Lord Jacob remarked, “The problem, stated at its most general, is simple. Does trademark law prevent the defendants from telling the truth? Even though their perfumes are lawful and do smell like the corresponding famous brands, does trademark law nonetheless muzzle the defendants so that they cannot say so?”2 A study of the decisions shows that whilst the ECJ decision stresses the trade holder’s rights as against distorted competition, Lord Jacob places emphasis on the right of the defendants to free speech and the right of the consumers to hear it.This paper seeks to examine both sides of the argument, specifically, the rationale for the prohibition against free riding and the consequences for its expansion as expressed in the L’Oreal case. This paper is divided into several parts, the first of which takes a look at the facts of the original case and the decisions as handed down by the trial court up to the European Court of Justice. Finally, a comparative analysis of the decisions of the Court of Appeal and the ECJ is made.L’Oreal, together with its subsidiaries, brought an action founded on the Trademark Act of 1994 and the Trademark Directive 89/104 of the European Economic Council against Bellure NV, North West Cosmetics Ltd, HMC Cosmetics Ltd, Malaika Investments Ltd, Shure Enterprises Ltd, Saveonmakeup.co.uk and Starion International Ltd. The charges were passing off,3 trademarks infringement4 and unfair advantage.5 Subsequently, some of the defendants entered into settlements with L’Oreal and company.6Bellure and the other defendants .imported, distributed and sold imitation fragrances that were manufactured in Dubai.
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