Court precedent | Carmel Case: trademarks – injunction – rejection. No overlapping of goods or services.
Court precedent | Carmel Case: trademarks – injunction – rejection. No overlapping of goods or services.
“Carmel Country Club S.A. v. Netflix Inc. and others s. precautionary measures”, Case No. 6600/2020, Federal Court of Appeals on Civil and Commercial Matters, Division II, November 3rd, 2020.
Division II of the Federal Court of Appeals on Civil and Commercial Matters confirmed the rejection of the precautionary measure requested by Carmel Country Club S.A. which was rejected by the Court of First Instance on the grounds that the requested measure exceeded the limited cognitive framework of a precautionary proceeding taking into consideration that the dissemination of information and ideas through the Internet is considered to be included within the guarantee of freedom of expression and the publication of ideas without prior censorship.
The requested measure based on the “de facto” trademark “Carmel” and the identical trade name against Netflix and others sought to order the immediate cessation of the use of the expressions “Carmel Country Club” and/or “Carmel”, the immediate cessation of the promotion and reproduction of the audiovisual contents and the distribution through online or streaming platforms under the name “Carmel Country Club” and/or “Carmel”, the immediate cessation of the promotion and reproduction of the trailer under the name “Carmel, Who Killed Maria Marta?” and the suspension of the premiere of the series with the same title to be held on November 5th, 2020.
The Second Division took into consideration that the trademarks “Carmel, Who killed María Marta?”, applied for in classes 38 and 41 of the International Trademark Nomenclator for the audiovisual series have no relation with the services rendered by the plaintiff (real estate activities). Therefore, since there is no overlapping of products or services, the Division ruled out the hypothesis of indirect confusion likely to generate confusion in the consumer public, association with the activity of the plaintiff, its services, and – eventually- products with the series, as well as the possibility that a common origin could be attributed to all of them.
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