No passing off and no copyright over this trademark: Court denies interim injunction

7th Feb 2022

Our firm has successfully prevented the issuance of an interim order in an intellectual property dispute pursuant to an application filed in the District Court of Nicosia by Holistic Med (plaintiffs/applicants) against our clients Bluesprit Limited.

Specifically, the applicants filed an application for an interim injunction to prevent our clients from using certain signs/words as trademarks in Cyprus, namely, the words “Bacteflora” and “Bactefiber” in a figurative logo.

The applicants claimed that our clients had committed the tort of “passing off” as they had filed applications for registration in their name of the trade marks in question which the applicants alleged belonged to them. The applicants also alleged that our clients in using the said trade marks, committed acts in the trade evidencing bad faith and unlawful practices. The Court dismissed these arguments and held that no passing off had taken place.

The applicants further claimed copyright rights over the said marks as “original works of authorship” and applied for an interim injunction to prevent our clients from using the said signs/words.

Our IP team submitted that the said signs / words were mere names, which did not meet the necessary standards allowing them to qualify for protection as ‘artistic works’ under the Cyprus copyright law. They were not accompanied by any original designs or other artistic elements and, therefore, did not qualify for protection under Article 3(2) of the Copyright and Neighbouring Rights Law (59/76), as amended.

Our IP team cited decisions of the CJEU, the English and South African Courts to support this legal position. Based on those decisions, we argued that in order to qualify for protection as an “artistic work” under copyright law, any name or word or design must be “original”, must be the result of the author’s personal intellectual work and must contain an artistic element. The Court proceeded to examine the facts of the dispute and concluded that, at this preliminary stage, the word was written in a font which might be widely used. It did not appear, and indeed no submission was made, that the work was “original”, within the meaning of the Law.

Inasmuch as the marks had already been filed for registration by our clients before the Cyprus Trade Marks Registry and were still pending, the Court held that the competent forum for this dispute would be the Registry, and it was within the context of an opposition that the Applicant could prosecute any alleged prior rights.

In the result, the Court dismissed the application for the issuance of an interim order against our clients, and the legal rights of our clients were maintained pending the Court’s final decision in the main legal action.

An appeal by the applicants before the Supreme Court has now been filed against the above decision.

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