Comment on ECJ judgment in L'Oreal v Bellure

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The ECJ's judgment in L'Oreal and Others v Bellure and Others is finally some good news for well-known brandowners with registered trade marks who may have been somewhat forlorn after the court's earlier decision in this area in Intel. The judgment is a warning to those who use others' well-known trade marks where it can be said that such use is "riding on the coat-tails" of the prestige and reputation of the brandowner and obtaining a commercial advantage from the association with the brandowner (for which it does not have to pay) in addition to not having to expend any marketing effort of its own. In this case, Bellure used similar packaging and bottles for its imitation fragrances to L'Oreal's luxury brands. Whilst there was no confusion between the two parties' products, such use by Bellure was held to amount to trade mark infringement because Bellure was taking an unfair advantage of the reputation that L'Oreal had built up in its trade marked packaging and bottles.

Furthermore, the judgment echoes warnings to producers and advertisers of imitation products who seek to use the Comparative Advertising Directive to hide from trade mark infringement claims when using brandowners' trade marks in advertisements to compare imitation products with well-known brands. In this case, Bellure marketed its cheap imitations of L'Oreal's well-known luxury fragrancesTresor, Anais Anais and others by devising a "smell-a-like" list referring to its products alongside L'Oreal's product names which are registered trade marks. Whilst such use was held not to damage the essential function of L'Oreal's trade marks, in other words identifying those luxury fragrances as belonging to L'Oreal, by using the trade marks for the purposes of advertising Bellure's imitation versions nevertheless affected their other functions of communication, investment and advertising therefore deeming Bellure's advertising unlawful.

Overall, the ECJ's judgement in L'Oreal v Bellure suggests a wider view of trade mark infringement than the U.K courts have traditionally adopted and may mark a move towards a more Continental concept of unfair competition.