COMPANYS held to be distinctive

In IC Companys A/S v CBR Textile GmbH (January 11 2010), the acting controller of patents, designs and trademarks has refused an application for a declaration of invalidity of the trademark COMPANYS.
IC Companys A/S is the holder of an international registration designating Ireland for the trademark COMPANYS for goods and services in Classes 3, 18, 25 and 35 of the Nice Classification. CBR Textile GmbH applied for a declaration of invalidity of the mark. Based on the evidence filed, registration of the mark was allowed to stand. 
CBR alleged that the COMPANYS mark was incapable of identifying the commercial origin of the goods and services at issue. The acting controller did not accept the claim that the word was simply a misspelling of the common word 'companies'. Rather, he found that COMPANYS was an invented word, which was thus capable of distinguishing the goods or services of one undertaking from those of another. 

As regards distinctiveness, the acting controller pointed out that even a modicum of distinctiveness was sufficient to ensure registration. Marks which contain the term 'company' and an additional verbal element can be afforded protection if the additional element is not considered descriptive and is capable of bestowing upon the mark a level of distinctiveness. The mark at issue fell into this category. The addition of the letter 'S', which made it an inventive word, gave it sufficient distinctiveness to perform the essential functions of identifying the goods and services of Companys, and of distinguishing them from goods and services that have a different commercial origin. 

The acting controller concluded that the word 'companys' did not designate (in the sense of naming or making reference to) any of the products within the specification of goods covered by the registration, and did not directly describe the characteristics of any such products. Therefore, the average consumer would instinctively perceive the sign as a trademark of a particular undertaking. Consequently, the mark was sufficiently distinctive to warrant registration.
Patricia McGovern, DFMG Solicitors, Dublin

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