Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 16 May 2012 - Specsavers International Healthcare Ltd, Specsavers BV, Specsavers Optical Group Ltd, Specsavers Optical Superstores Ltd v Asda Stores Ltd
(Case C-252/12)
Language of the case: English
Referring court
Court of Appeal (England & Wales) (Civil Division)
Parties to the main proceedings
Applicants: Specsavers International Healthcare Ltd, Specsavers BV, Specsavers Optical Group Ltd, Specsavers Optical Superstores Ltd
Defendants: Asda Stores Ltd
Questions referred
Where a trader has separate registrations of Community trade marks for
(i) a graphic device mark;
(ii) a word mark;
and uses the two together, is such use capable of amounting to use of the graphic device mark for the purposes of Articles 15 and 51 of Regulation 207/2009? If yes, how is the question of use of the graphic mark to be assessed?
Does it make a difference if:
(i) the word mark is superimposed over the graphic device?
(ii) the trader also has the combined mark comprising graphic device and word mark registered as a Community trade mark?
Does the answer to A or B depend upon whether the graphic device and the words are perceived by the average consumer as (i) being separate signs; or (ii) each having an independent distinctive role? If so, how?
Where a Community trade mark is not registered in colour, but the proprietor has used it extensively in a particular colour or combination of colours such that it has become associated in the mind of a significant portion of the public (in a part but not the whole of the Community) with that colour or combination of colours, is the colour or colours with which the defendant uses the sign complained of relevant in the global assessment of (i) likelihood of confusion under Article 9(1)(b) or (ii) unfair advantage under Article 9(1)(c) of Regulation 207/2009? If so, how?
If so, is it relevant as part of the global assessment that the defendant itself is associated in the mind of a significant portion of the public with the colour or particular combination of colours which it is using for the sign complained of?
____________1 - OJ L 78, p. 1