Number 12 distinctive for door handles

Finland
  • Finnish Supreme Administrative Court has annulled a decision to refuse registration of the number mark 12 for door handles
  • Held that a consumer would not necessarily associate the trademark 12 with characteristics of the goods
  • The mark should not be regarded as being devoid of distinctiveness

On October 16 2017 the Finnish Supreme Administrative Court ruled in its judgment KHO:2017:159 that the trademark 12 consisting of numbers could be registered. The decision is final.

Background

Before the case at hand, the Finnish Patent and Registration Office (PRH) rejected the registration of the number 12 as a trademark for door handles in Classes 6 and 20 on the ground that the applied-for mark was devoid of distinctive character. The PRH held that the mark could be understood to indicate the amount or the price of the goods in question.

The Finnish Market Court dismissed Abloy Oy’s appeal against the PRH decision (MAO 491/15). According to the Market Court the door handles could be sold in packs of multiple handles and the handles could cost €12. The court considered that it was reasonable to expect that the number 12 indicated the amount or price of the handles in the opinion of the relevant public. Whether the handles were sold in packs of 12 or whether the door handles cost €12 was considered to be irrelevant. The Market Court held that the applied-for mark was not distinctive for the goods in question.

Abloy Oy claimed that the Market Court had not complied with European Court of Justice case law, according to which the distinctive character of a trademark must be assessed in relation to the goods for which registration is applied for (C-51/10 P, T-176/10). Abloy Oy argued that the trademark 12 was distinctive in relation to the door handles. The company submitted evidence in support of its claim, including certificates in which industry professionals stated that the door handles were not sold in packs of 12 and consumers did not think that the trademark 12 referred to the number or price of the handles.

Decision

The Supreme Administrative Court granted Abloy Oy leave to appeal regarding the Market Court decision. The Supreme Administrative Court held that the distinctive character of the trademark 12 must be assessed in relation to door handles in Classes 6 and 20. It found, on the basis of the survey submitted by Abloy Oy, that it could not reasonably be expected that a consumer of the target group would consider the trademark 12 to refer to the number of the door handles.

The Supreme Administrative Court also noted that prices of goods are generally stated with the word ‘euro’ or the currency mark €. The prices are also normally given to two decimal places.  Therefore, it was not reasonably foreseeable that a consumer within the target group would perceive the trademark 12 alone as the price of the handles in euros. Likewise, it was not reasonably foreseeable that the trademark 12 would be considered to represent a discount for the handles without the words ‘per cent’ or the sign %.

The Supreme Administrative Court stated that since it was not reasonably foreseeable that a consumer of the target group would associate the trademark 12 with the number or price of the door handles, or the trademark 12 would otherwise describe the characteristics of the handles, the mark should not be regarded as being devoid of distinctiveness. According to the court, a trademark consisting of numbers could be registered, but it had in principle a weak distinctive character.

The Supreme Administrative Court annulled the decisions of the Market Court and the PRH and returned the matter to the PRH for registration of the trademark 12.

Jukka Palm, Berggren Oy, Helsinki

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