ROMANIA
LACK OF CLARITY IN TRADEMARK LAW
Raluca Vasilescu Cabinet M. Oproiu
There are times when things change quickly in IP: spectacular decisions are reached involving famous parties or famous counsels, decisions that are quoted for many years or even decades afterwards.
And then there are times when changes occur smoothly. Cases are commonplace, yet there is some incremental change over time, similar to deep water that looks very still while under the surface waves prepare the change.
2012 was a quiet year for trademark practitioners. There was a notable shift in the practice of the Board of Appeal of the Romanian Patent and Trademark Office (OSIM) in respect to judging the similarity of combined trademarks. But difficulties arising from the wording of the current law, in force since May 2010, remain.
Landmark decision
One landmark decision was the result of an opposition in which Cabinet M. Oproiu acted as counsel for the opponent. The court’s final decision was delivered in November 2012.
The legal provisions applicable to this case are the conflict between a senior mark and a junior mark when there is a risk of confusion by the public. The interpretation given by OSIM’s Board of Appeal in this case represents a notable difference in practice. This new practice has been confirmed in many other cases prosecuted throughout 2012, although decisions are not yet available.
Coca-Cola Hellenic Bottling Company SA (CCHBC) is a Greek company producing mineral waters and soft drinks that are sold in some EU member countries, such as Greece and Italy, but not in Romania.
CCHBC is the holder of two ‘Amita’ Community trademarks (CTMs), one being a word mark and one a combined mark, with the following device.
94 World Intellectual Property Review e-Digest 2013
In September 2011, CCHBC lodged opposition against the junior mark, requesting that the mark be refused for all the goods listed in class 32. It claimed that the trademark applied for was confusingly similar to the earlier marks in class 32, and could be associated with it. Proofs of use were adduced from Italy and Greece.
The Opposition Commission of OSIM rejected the opposition, arguing that the marks are sufficiently distinctive as to prevent confusion. The
www.worldipreview.com
Both marks are valid in the Romanian territory as of January 1, 2007, and refer to goods in class 32: soft drinks, beverages, waters, aerated and mineral waters, beers, syrups and other substances for making beverages and all kinds of juice.
In April 2010, a Romanian company Avita SRL (Avita), applied for registration for a combined trademark, ‘Avita’ and device for the same list of products.
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