No exclusive rights to use LOTTO mark

The Supreme Court has reversed a decision of the Maritime and Commercial Court in a dispute involving the LOTTO mark.
In 2000 ApS filed an application for the registration of a device mark containing the term 'lotto24' for services in Class 41 of the Nice Classification. After the mark had been registered, Danish company Danske Spil filed objections against the registration based on its own alleged rights in the LOTTO mark.
The Danish Trademarks Office rejected Danske's objections. However, the Trademarks Board of Appeal upheld the objections, denying registration of the LOTTO24 mark on the grounds that:
  • Danske had used the LOTTO designation on the Danish market; and
  • LOTTO was commonly known as a designation for Danske's goods and services.
Lotto24 appealed to the Maritime and Commercial Court. A market survey was carried out on behalf of the court, showing that the majority of respondents found that the LOTTO designation was connected to Danske's goods and services. Therefore, the court ruled in favour of Danske and the Trademarks Board of Appeal.
On appeal, the Supreme Court reversed this decision and found for Lotto24. The court stated that a word which, to date, has been a general designation for goods or services may, in special circumstances, become a sign for the goods or services of a specific business through use. However, the court found that, in August 2000, the word 'lotto' was not considered to represent Danske's goods and services by a majority of the population. Therefore, Danske had not acquired sole rights to use of the word 'lotto'.
Mads Marstrand-Jorgensen, Norsker, Copenhagen

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