Reputation of the trade mark Botox with respect to each of the categories comprising the relevant public.
"65. It is apparent from paragraphs 48, 49 and 50 of the judgment under appeal that the General Court examined, as evidence intended to establish the reputation of the earlier marks, the promotion of the BOTOX mark carried out, inter alia, through the publication of articles in English both in scientific journals, which are specifically aimed at practitioners, and in the general-interest press.
67. Accordingly, the General Court, having made these findings – from which it emerges that it took into account both the general public and health-care professionals – did not err in law by holding in paragraph 64 of the judgment under appeal that, as at the date on which the disputed marks were filed, namely 6 May or 19 July 2002, the trade mark BOTOX had a reputation in the United Kingdom as regards ‘pharmaceutical preparations for the treatment of wrinkles’ with respect to each of the categories comprising the relevant public."
Reputation examined in relation to the entire territory of the United Kingdom.
"70. Also, it is apparent from the various items of evidence taken into consideration by the General Court – such as the press articles in English published in scientific journals or English daily newspapers, the inclusion of the word ‘BOTOX’ in English language dictionaries and the decision of the United Kingdom Intellectual Property Office – that the reputation of the earlier marks was examined in relation to the entire territory of the United Kingdom.
71. Accordingly, the argument that the General Court erred in law as regards the delimitation of the relevant territory must be rejected."
Actual and present harm to mark is required, which can be based on prima facie evidence of a future risk, which is not hypothetical.
"95. Accordingly, the General Court was correct in holding, in paragraph 82 of the judgment under appeal, that the proprietor of the earlier mark is not required to demonstrate actual and present harm to its mark but must, however, adduce prima facie evidence of a future risk, which is not hypothetical, of unfair advantage or detriment, and such a conclusion may be established, in particular, on the basis of logical deductions made from an analysis of the probabilities and by taking account of the normal practice in the relevant commercial sector as well as all the other circumstances of the case."
IPPT20120510, CJEU, L’Oréal v OHIM
C-100/11 P - ECLI:EU:C:2012:285
