Brands, models and "adult items"

marca comunitaria


The protection of trademarks and Community designs to the "adult toys" also applies.

Article 5 Trademark Law, stated in Article 5 absolute prohibitions: "May not be registered as a trademark the following signs" and in paragraph "f" picks "Those who are against the law or public order or morality".

However, el legislador, It does not refer to the use to which such products but the distinguishing signs as "brand". In fact, There are many brands, Community industrial designs and models used in the field of "adult toys". And his offense has the same legal consequences than they would with any other product.

The Community Trademark Court in Alicante, recently it solved one of these cases in sentence 30 September 2015.

The German company "Fun Factory" sued the Spanish mercantile "Life is Short" by infringement of certain Community designs and Community trademarks.

The Court CTM, estimated demand and he condemned "Fun Factory" to cease marketing the product and litigious signs, to compensate the plaintiff with the benefits obtained with the minimum of one percent of the turnover, payment of 599 euros, the publication of the judgment in two specialized magazines and to pay the costs of the proceedings.

The defendant appealed and argued in its defense:

  1. Hay diferencias entre los productos originales y los comercializados por la demandada.
  2. No se comprobó el packaging original de la actora.
  3. Absence of bad faith.
  4. Irrelevance of compensation for damages.
  5. Illegality of the order to pay costs.

The situation continues to be "striking" and certainly outside the courtroom has caused more than a few smiles among those attending the event.

It discards the probative value of the expert report Industrial Engineer issued for that "Does not meet the condition of informed user under Community law" ...

Similarly, the argument is rejected lack of accreditation of use of the mark by the plaintiff: The mark was actually used in the packaging of the products of both companies even if it was different font sources.

The absence of bad faith it is not relevant to the infringement of models and brands do not require any degree of subjective complaint by the offending company.

Compensation for damages it is appropriate pursuant to Article 42.1 LM relative to 34.3 sections to) and f) and Article 54 LPJDI: Is a strict liability, in the absence of bad faith it is irrelevant.

Last the sentence was confirmed in costs, the Chamber is considering is a substantial estimate, there is no significant difference between requested and granted.

Ultimately, despite the curious situations, shocking or humorous that his claim may raise in court, la normativa sobre trademarks and industrial designs It is perfectly applicable also to products "adult".

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