As MARQUES has reported today the Court of Appeal for England and Wales today rendered its judgement in n L’Oréal SA & Others v Bellure NV & Others  EWCA Civ 535 following the ECJ’s decision in Case C-487/07.
30. I am bound to say that I have real difficulty with these functions [functions of communication, investment or advertising] when divorced from the origin function. There is nothing in the legislation about them. [very true!] Conceptually they are vague and ill-defined. Take for instance the advertising and investment functions. Trade mark owners of famous marks will have spent a lot of money creating them and need to continue to spend to maintain them. But all advertisements for rival products will impinge on the owner’s efforts and affect the advertising and investment function of the brand in question. No-one would say such jostling for fame and image in the market should be stopped. Similarly all comparative advertising (for instance that in O2 v Hutchinson  ECR I-04231, said to be acceptable by the Court) is likely to affect the value of the trade mark owner’s investment.
I guess, there is nothing left for me to do than to cite Lord Justice Rimer: ‘I also agree‘.