Trademark held not to be common misspelling

In a decision issued on July 13 2010, the registrar of trademarks of Singapore has rejected an action filed by CBR Textiles GmbH for the invalidation of IC Companys A/S’ mark COMPANYS under Sections 7(1)(a) to (d) and 7(6) of the Singapore Trademarks Act (Cap 332, 2005 Rev Ed).
The mark covered advertising, business management and administration, office functions and retail services in Class 35 of the Nice Classification.
The relevant sections of the act read as follows:
"7(1) The following shall not be registered:

(a) signs which do not satisfy the definition of a 'trademark' in Section 2(1);
(b) trademarks which are devoid of any distinctive character;
(c) trademarks which consist exclusively of signs or indications which may serve, in trade, to designate the... intended purpose... of services... or other characteristics of services...; and
(d) trademarks which consist exclusively of signs or indications which have become customary in the current language, or in the bona fide and established practices of the trade.

7(6) A trademark shall not be registered if, or to the extent that, the application is made in bad faith."
Under Section 2(1), a 'trademark' is defined as “any sign capable of being represented graphically and which is capable of distinguishing... services dealt with or provided in the course of trade by a person from... services dealt with or provided by any other person”. A 'sign' is defined to include any word.
The registrar found that the word 'companys' had no known meaning. The evidence adduced was insufficient to conclude that 'companys' was a common misspelling of 'companies'. The mark was distinct from the English words 'company' and 'companies', which have been commonly used by traders in relation to Class 35 services. The registrar held that the difference between the mark and these words was not de minimis.
The English language is commonly used in Singapore. Therefore, the average consumer is aware that the plural form of the word 'company' is 'companies', and not 'companys'. Given the trading circumstances of the services at issue, the average consumer was likely to encounter the mark in writing (eg, in a letterhead, in an advertisement or on a shop front). The registrar observed that the mark would not appeal as much to the ear as to the eye.
Based on the foregoing, the registrar found that the mark was capable of distinguishing the trademark owner’s services from those of others (Section 7(1)(a)). The registrar further held that the mark had sufficient inherent distinctive character (Section 7(1)(b)) and did not consist exclusively of signs or indications that designated characteristics of the services at issue (Section 7(1)(c)). Finally, the registrar concluded that the evidence was insufficient to establish that the mark had become generic (Section 7(1)(d)) or that it had been applied for in bad faith (Section 7(6)).

The parties were involved in similar proceedings in Ireland earlier this year (for further details please see "COMPANYS held to be distinctive").
Ngoi Soon Hui, Drew & Napier LLC, Singapore

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