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Advocate-General Mengozzi has now delivered his Opinion in L'Oreal v Bellure. This case concerns the marketing of "smell-alikes" by Bellure. They were marketed using comparison lists which referenced the scent in Bellure's perfume products by reference to well-known L'Oreal perfume brands. Bellure also marketed their scents in packaging which, as was admitted by a witness at trial, gave a "wink" to L'Oreal's brand and packaging.

Council Regulation 207/2009 which came into force on 18th March 2009 replaces the Trade Mark Regulation 40/94. It is only a consolidating regulation so there are no actual legislative changes. Readers should consult the annex which sets out which articles correlate to each other. Arts. 1-36 remain unchanged.

In T-424/07 Pioneer v OHIM, the CFI upheld a decision by the Boards of Appeal of OHIM that OPTIMUM was not registrable for biological material namely plant tissue genes as it was a common laudatory mark and thus devoid of any distinctive character contrary to Art.7(1)(b). In doing so, the CFI made it clear that the mere fact that a laudatory mark does not refer to particular characteristics of goods or services did not mean that the objection failed. In doing so, the CFI is clearly following its previous case (see para 3-072 of the book) that laudatory marks are not registrable.

In C-495/07 Silberquelle GmbH v Maselli-Strickmode, the ECJ has held that there is not genuine use of a registered trade mark where promotional items (alcohol-free drinks) bearing a registered trade mark are handed out as a gift to those who purchased clothing of the registered proprietor. In a short judgment, the ECJ held that such was not genuine use. It held that where items are not distributed "with the aim of penetrating the market for those goods", there is not genuine use.

In C-240/07 Sony Music Entertainment v Falcon Neue Medien Vertrieb, handed down on 20th January 2009, the ECJ held that copyright could "revive" where such was protected in at least one Member State regardless whether the Member State in which it was protected was not the one in which protection was sought.

In two recent decisions of the ECJ, the ECJ has clarified what will and what will not amount to an infringement of database rights under the Database Directive. In doing so, the ECJ have, as was done  in British Horseracing Board, adopted a wide, inclusive, approach to what acts amount to infringement.

In T-316/07 Commercy AG v OHIM (ex parte easyGroup), the CFI rejected an appeal from OHIM refusing to cancel a registered trade mark for easyHotel for reservation services. The earlier mark was identical but for computer software for producing Internet-enabled hotel reservation platforms. The CFI held that the services were not similar because, in effect, they operated in different markets, one being "upstream" of the other. As it said, people using a reservation website are not interested at all in who provides the software for running that platform.

The Rome II Regulation on the law applicable to non-contractual obligations came into force on 11th January 2009. For further details, see chapter on Jurisdiction.

The United Kingdom, having initially chosen not to adopt Regulation 593/2008 which harmonises the law applicable to contractual obligations (Rome I) (see chapter on Jurisdiction), has now indicated to the Commission that it wishes to participate in the Regulation. By Commission Decision dated 22nd December 2008 [2009[ O.J. L10/22, the regulation now applies to the United Kingdom. As with other states, it will not enter into force until 17th December 2009.

In C-52/07 Kanal 5 and or v STIM, the ECJ was asked to provide judicial assistance on the approach by national courts to the compatibility of methods of levying charges employed by collecting societies against public and commercial television broadcasting companies with regard to the playing of musical copyright works. A Swedish collecting society, STIM, which had a de facto monopoly in the market of making available music protected by copyright for television broadcasts.