Certain non-descriptive and generic marks may be registered
The Colombian Trademark Office has issued a resolution which implements Article 135 of Andean Community Decision 486 on a Common Intellectual Property Regime. Article 135 provides that, generally, a mark may not be registered if it:
- lacks distinctiveness;
- consists solely of a statement that describes in respect of the product or service for which it is to be used, its quality, quantity, purpose, value, geographical origin or time of production;
- consists solely of a statement that is the common or technical name of the product or service concerned;
- consists solely of a statement which is the common or usual designation for the product or service concerned; or
- consists of a color in isolation, without any demarcation to give it a specific shape.
However, there is an exception to this rule. Such a mark may be registered where its continued use in an Andean Community member country by the applicant (or assignor) has endowed it with distinctiveness in respect of the product or service to which it is applied.
Thus, pursuant to the Trademark Office's new resolution, a non-descriptive or generic mark which normally may not be registered, may in fact be registered if (i) the public associates that mark with a specific product or service as a result of its continued use by the trademark applicant, and (ii) the applicant is able to prove this association.
Fernando Triana, Triana Uribe & Michelsen, Bogota
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