Light turned out on LIMO application for lasers

In Lissotschenko v Office for Harmonization in the Internal Market (OHIM), the European Court of First Instance (CFI) has upheld a refusal to register LIMO as a Community trademark for lasers for medical and other purposes.

Vitaly Lissotschenko and Joachim Hentze (the applicants), two individuals residing in Germany, applied to register LIMO as a Community trademark with the OHIM for goods in Classes 9, 10 and 11 of the Nice Classification. The OHIM rejected the application in respect of lasers for non-medical purposes in Class 9 and lasers for medical purposes in Class 10 on the grounds that the mark was descriptive and devoid of any distinctive character as it could be viewed as an abbreviation for the phrase 'laser intensity modulation'. The decision was upheld by the OHIM's Board of Appeal and the applicants appealed to the CFI.

They argued that LIMO was not known to the relevant public as an abbreviation for laser intensity modulation and that it did not appear either in specialist literature or on the Internet. The applicants contended that LIMO was commonly used as an abbreviation for the words 'limousine' or in some countries 'lemonade', or for the expression borrowed from economics 'least input for the most output'. Therefore, the relevant public would not necessarily make any connection with the goods in Classes 9 and 10 covered by the application.

The CFI dismissed the appeal and refused registration. It found that the relevant public must be deemed to be composed of specialists who were well-informed, observant and circumspect since the goods in question were intended for professionals rather than for the average consumer. Thus, from the viewpoint of the well-informed, specialist consumer, there was a sufficiently direct and specific relationship between LIMO and the goods in Classes 9 and 10 covered by the application.

The CFI concluded that while LIMO was not typically used in specialist circles as an abbreviation for the expression 'laser intensity modulation', this did not automatically mean that it was not descriptive. It was sufficient, said the court, that the mark could be used for such purposes. Since one of the possible meanings of LIMO was laser intensity modulation, the relevant public was perfectly capable of understanding the sign as having that meaning.

Reinhard Schanda and Angela Heffermann, Sattler & Schanda Rechtsanwälte, Vienna