However, it is for the national court to verify that the circumstances in which the requirement under that provision is satisfied are shown to exist on the basis of specific and reliable data, that the presumed expectations of an average consumer of the category of goods or services in question, who is reasonably well-informed and reasonably observant and circumspect, are taken into account and that the identification, by the relevant class of persons, of the product as originating from a given undertaking is as a result of the use of the mark as a trade mark.
The interviewees should have been shown tabletingg mark as registered. The argument is without any merit. The exact description of the shape of the tablet was the subject of much evidence but it would not be unfair to state that the tablet is bi-convex with a regular oval i.
Functionality per se is no disqualification. Later it obtained a trade mark for the shape of the shaver head.
Modification of the angled edge of the bevel face to the curved edge of the radius face, enabled deeper punch penetration in the die cavity during the compression cycle, bringing about greater compact densification. Whether the converse is true is a question that, due downllad the paucity of argument, can best be left for another day. Recommended articles Citing articles 0.
No regard should be had to the dimensions indicated. The mg Augmentin tablet is not the registered trade mark. This means that the question whether a mark constitutes a trade mark as defined is a factual matter and should be approached without any a priori disqualification or classification.
It is also somewhat unrealistic considering the nature of the pharmaceutical trade. Moreover, the ground for refusal or invalidity of registration imposed by that provision cannot be overcome by establishing that there are other shapes which allow the same technical result to be obtained. It is sufficient, as is clear from paragraph 30 of this judgment, for the trade mark to enable the public concerned to distinguish the product or service from others which have another commercial origin, and to conclude that all the goods or services bearing it have originated under the control of the proprietor of the trade mark to whom responsibility for their quality can be attributed.
It was, unsurprisingly, also white. Both groups were asked the same question: Both categories are admissible to decide whether, since the application date, the mark through use has become capable of distinguishing under the proviso to s I realise that some of these were introduced after registration, but others were not. Local policy considerations may differ from those applicable in Europe. Many of them required medical assistance to remove the tablet. Section 9 provides as follows:.
I am satisfied that in such event they would have replied with less confidence. The function of a trade mark, in terms of the definition, is to indicate the origin of the goods or services. In particular, the Directive in no way requires that the shape of the article in respect of which the sign is registered must include some capricious addition.
This is not always particularly difficult since intellectual property rights, because of international developments, business realities and parliamentary involvement, may overlap or exist parallel to each other. In any event, more often than not the evidence on one ground was relevant in relation to another ground. This does not mean that we are bound to follow these authorities nor does our diluted Dutch legacy require of us to submit meekly to a Philips dynasty. Shape, in this case, is necessary for ease of swallowing, coating and the prevention of crumbling.
This could be attributed to the enhanced packing efficiency at both precompression and main compression stages. Abstract The influence of punch face edge geometry modification on tablet compression and the properties of the resultant tablets produced on a rotary press were investigated.
A recent press release by Schering Laboratories deals with a problem patients experienced swallowing round-shaped tablets. The influence of punch face edge geometry modification on tablet compression and the properties of the resultant tablets produced on a rotary press were investigated.
BEECHAM GROUP PLC First Appellant
Patients do not readily accept large round tablets. In the light of those considerations, the answer to the second question must be that, in order to be capable of specificatuon an article for the purposes of Article 2 of the Directive, the shape of the article in respect of which the sign is registered does not require any capricious addition, such as an embellishment which has no functional purpose.
In view of my conclusion that the appeal stands to be dismissed, I do not intend to canvass the whole area as did the learned Judge but my failure to deal with any particular issue should not be seen as either approval or disapproval of his judgment.
Due to the poor quality of the photograph I prefer to use a drawing of an Augmentin tablet to illustrate the trade mark. They did not have protection against passing-off 6 and could not be registered as trade marks. There are many pharmaceutical tablets including antibiotics on the market with the identical or substantially identical shape, albeit not necessarily with the same size as Augmentin.
Tablet compression tooling – Impact of punch face edge modification – ScienceDirect
The submission is too narrowly structured especially since trade mark registration potentially protects the trade mark against use on similar goods s 34 1. Whether such a mark is distinctive is another matter because, conceptually, the question whether a mark is capable of distinguishing within the meaning of s 9 is an issue different, though not always separate, from the one now under consideration.
The criteria for assessing the distinctive character of three-dimensional trade marks, such as that at issue in the main proceedings, are thus no different from those to be applied to other categories of trade mark. Triomed imports a pharmaceutical with the same composition and sells it under the name Augmaxcil. Another standard work, the German Die Tabletteshows graphically a tablet identical to Augmentin.
There is an ever-increasing tendency to seek protection in a field not designed or intended to cover the area. If the answer is no, the next inquiry is whether the mark is presently so capable of distinguishing by reason of its use to date.
This requires that each right should be kept firmly within its legitimate bounds. The position under the repealed Trade Marks Act 62 of was different because it did not permit the registration of shapes or configurations as trade marks. Graphical abstract Download high-res image KB Download full-size image. Improved die fill packing increased interparticulate bond formation and helped to dissipate destructive elasticity within the compact, consequently reduced tablet expansion during the decompression phase.
The results revealed that tablets produced from the punches with radius edge face geometry consistently displayed better physical quality; higher tensile strength and lower capping tendency. Pharmacists do not buy or dispense drugs by way of shape. Sspecification more a trade mark is descriptive of the goods, the less tzbleting it will be capable of distinguishing them in this sense. Whether the absolute passing-off rule still makes sense in tbaleting light of changes to the trade mark position is a moot question; an adaptation along trade mark lines may downloax a future development.
Functional designs originally specifcation be protected as patents. Aphorisms can be dangerous and in any event, it requires some genetic engineering in order to adapt an aphorism applicable to a particular copyright problem to trade mark law.