Tuesday 25 October 2016

Sally is surprised by European wisdom on her beauty care regime

Our Sally Cooper is a right fashionable lady and she's always up there at the cosmetics counter studying what product is in vogue today to make sure she is right up there with the celebrities with the very latest beauty care. You can imagine, therefore, that she was somewhat horrified to find that at the European judcial bench the view is very different. Here is her blog:

Sometimes when you are reading – a few words give pause for thought. This morning it was an observation of the General Court that “fashion is not concerned with beauty care products”. These words can be found at the end of paragraph 24 of the Decision in Trinity Haircare AG v European Union Intellectual Property Office (EUIPO) [Case T 453/15 : 15th September 2016]: admirably reported by MARQUES. It’s an invalidity action where (for much of the case) the Applicant for invalidity appears to be trying to push “ vogue ” towards being generic for (any and all) goods in Class 3 e.g. to have “ … those cosmetics are vogue … “ sit alongside phrases like “ …… it hoovers up dust … “ and “ I’d like to xerox that page … “ and “ … pass me the sellotape … “.
 I used the excellent search engine of BAILII to check that I’d not missed the word “generic “ in the Decision. The fact I hadn’t isn’t too surprising given that argument centred on Article 7(1)(b) (“not distinctive”) and Article 7(1)(c) (“descriptive” and “other characteristics”) rather than Article 7(1)(c) (“customary in current language or in bona fide and established practices of the trade”).

But “fashion is not concerned with beauty care products” ? Reading a little more of paragraph 24 provided the Court’s explanation : “EUIPO … is entitled to state that beauty care products are not fashion products, given that consumers buy them for their ‘result’, that is to say, the fact that the product moisturises well, deodorises well or has a pleasant scent ……… EUIPO rightly notes that the notion of fashion is connected with the permanent change linked to every season and every year. That is not the case with the goods at issue, in respect of which change is rarely linked to the change of season or year but to innovation, that is to say, the appearance of a new product in a position to satisfy the consumers’ unmet needs”.

I was hoping to find that “fashion is not concerned with beauty products” was a weak translation : but the Decision is only available in one other language – French – where the text is “la mode ne concerne pas les produits de soins et de beauté”.

I thought I might find a Tribunal of three male judges – but it’s two male and one female.

I was wondering whether I could simply delete “fashion is not concerned with beauty products” from the end of paragraph 24 but that doesn’t do away with the preceding explanation which (surely) is WRONG ? Try typing “cosmetics for winter” into a search engine : even VOGUE advertises cosmetics linked to season !

A few words gave pause for thought – I wish they hadn’t !

Dutch firm, Trinity Haircare sells very fashionable hair colouring products as VDT vogue de TRINITY. I think Sally may use the pink.

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