Retro radiator grille is registrable
In DaimlerChrysler Corporation v Office for Harmonization in the Internal Market (OHIM), the European Court of First Instance has reversed the decision of the OHIM Board of Appeal to reject the registration of the representation of a radiator grille. The court found that the retro style of the grille makes it sufficiently distinctive to warrant registration.
DaimlerChrysler applied to register a figurative mark representing a jeep radiator grille, filing evidence on (i) the history of grilles, and (ii) the uniqueness and reputation of the grille for which it sought registration. The OHIM rejected the application on the basis that the grille lacked distinctive character. The Board of Appeal upheld the decision. DaimlerChrysler appealed to the European court.
The court reversed the Board of Appeal's decision. Although it refused to consider a survey on the recognition of grilles as further evidence, it found that:
- distinctiveness must be assessed with due regard to all relevant factors. In the case of large goods such as vehicles, visual indicators such as two or three-dimensional marks are appropriate means of identifying origin;
- grilles no longer have a purely technical function and are therefore one of the features capable of visually identifying a model or range, or all vehicles made by a particular manufacturer; and
- the shape of DaimlerChrysler's grille is unusual in that it looks old-fashioned. The sign must therefore be considered capable of indicating commercial origin and distinguishing vehicles to which it applies.
Chris McLeod, Hammonds, London
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