[PDF] Dissertation MJE(2)edit
You +1'd this publicly. Undo
oami.europa.eu/ows/rw/resource/documents/.../mark_ellis_2010.pdfFile Format: PDF/Adobe Acrobat - Quick View
The ECJ has also defined what is to be considered as a mark with a reputation quite .... European Intellectual Law Review 326 at 328. ...... packaging or get up (or a mark which is similar) which has a reputation is a potentially ...

I find this text enlightening:

"To establish a reputation, the goods or services must have a ‘distinctive character accepted by the market’ which distinguishes them from the goods or services of other traders. The elements of this distinctive character can go beyond those recognised in Trade Marks to anything that, as a question of fact, is viewed by the relevant public as associated with particular sources, at least one of whom is in fact the plaintiff.
Thus in Cadbury Schweppes Pty Ltd v. The Pub Squash Co Ltd [1981] RPC 429 (PC) the reputation of various aspects of the ‘get-up’ or ‘trade dress’ of the Plaintiff’s ‘Solo’ cans was in issue, including the macho image of the advertising campaign, the lemon colour of its cans and the beer-label-like labelling. The evidence in that case did not establish that there was sufficient association of attributes like the lemon colour with the plaintiff as opposed to other lemon flavoured drinks. [...]
Use of a mark, or other aspects of the plaintiff’s distinctive get up, can represent to the public that the goods are those of the plaintiff. ‘Get-up’ is usually thought of as distinct from the product itself, some ‘capricious addition to the article itself’ that may add value but doesn’t have function or value in itself. There is no property in the get-up itself, in the absence of any other intellectual property. Passing off only occurs where the get up is wrongly used to represent that the product comes from or belongs to another."
http://law.anu.edu.au/Itlaw/12_UnfairTrading/Text12.doc