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29 November 2004

No ray of light for torch shape mark applications

In Mag Instrument Inc v OHIM, the ECJ has upheld the OHIM's decision to refuse the registration of a series of three-dimensional signs representing shapes of torches as Community trademarks. It agreed that the shapes were devoid of any distinctive character as they were simply variants of a common torch shape.

26 November 2004

Libertel principles cultivated in seeds colour mark case

In KWS Saat AG v OHIM, the European Court of Justice has applied the approach to colour mark registrations taken in the Libertel decision to an application to register the colour orange as a Community trademark. It upheld the earlier finding that the mark was devoid of any distinctive character.

25 November 2004

Genuine use requires actual proof, CFI confirms

In Vitakraft-Werke Wührmann & Sohn GmbH & Co KG v OHIM, the Court of First Instance has ruled that the OHIM Board of Appeal erred in accepting evidence in the form of catalogues as proof of trademark use. The court confirmed that it is not sufficient for genuine use to appear probable or credible - actual proof of use must be given.

19 November 2004

Nestlé's oppositions to Mars's shape marks go down the tube

The OHIM Board of Appeal has dismissed Nestlé's oppositions to Mars's applications to register three-dimensional tube shape marks for its M&M's Minis product. The board found that Mars's marks did not create a likelihood of confusion and did not take unfair advantage of or cause detriment to the distinctive character or repute of Nestlé's tube shape marks.

16 November 2004

EU Constitution will have an impact on trademark law

The EU Constitution, which was agreed on June 18 2004 and formally signed on October 29 2004, will have an impact on trademark law in the European Union as it sets out how IP laws will be adopted. If ratified by the member states, the Constitution will come into effect on November 1 2006.

09 November 2004

APPLIED MOLECULAR EVOLUTION registration refused

In Applied Molecular Evolution Inc v OHIM, the European Court of First Instance has upheld a decision to refuse the registration of APPLIED MOLECULAR EVOLUTION as a Community trademark for services related to molecular engineering of compounds. It held that the mark was descriptive of the services covered by the application.

02 November 2004

NL clothing marks hung out to dry

In New Look Ltd v OHIM, the European Court of First Instance has upheld a decision to refuse the registration of NLSPORT, NLJEANS, NLACTIVE and NLCOLLECTIONS as Community trademarks for clothing. It held that the marks were likely to cause confusion with the earlier Community trademark NL registered for the same type of goods.

29 October 2004

SAT.2 not descriptive under Article 7(1)(b), ECJ rules

The ECJ has allowed the registration of SAT.2 as a Community trademark. It ruled that even though (i) the elements making up the SAT.2 mark are descriptive and commonly used in relation to the services for which registration was sought, and (ii) their combination does not reflect a high degree of inventiveness, this does not mean that the mark as a whole lacks distinctiveness.

25 October 2004

Procter & Gamble's soap shape mark bubble burst by ECJ

In Procter & Gamble Company v OHIM, the European Court of Justice has upheld the Court of First Instance's decision to refuse the registration of a three-dimensional mark for the shape of a bar of soap. The ECJ held that the shape did not indicate trade origin as it (i) varied only slightly from other shapes commonly used for soaps, and (ii) would be perceived as having a utilitarian function.

19 October 2004

CFI confirms rules for party substitution in opposition actions

The European Court of First Instance has issued a decision that confirms that where a mark is transferred during the course of a trademark opposition action, the new owner of the mark can be substituted for the transferor in that action if (i) the transferor has no objection, and (ii) the court, having heard the other parties to the action, considers it appropriate.

14 October 2004

Genuine use does not mean large turnover, CFI confirms

In Sunrider Corporation v OHIM, the European Court of First Instance has confirmed that, in order to determine whether a trademark has been put to genuine use, the volume of sales is not the only factor to consider. An overall assessment of the length and frequency of use must also be carried out.

13 October 2004

Community trademark protection for LEGO shape mark denied

The Cancellation Division of the OHIM has ruled that a Community trademark showing a picture of a Lego brand of toy brick is invalid in relation to "construction toys". The OHIM held that the shape of the mark was necessary to obtain a technical result and as a consequence the mark could not be protected on the basis of acquired distinctiveness.

12 October 2004

Changes to examination practice likely following NICHOLS ruling

In Nichols plc v Registrar of Trademarks, the ECJ has ruled that surnames should be examined according to the same criteria as other types of trademarks. It is likely that the decision will necessitate changes to the way in which the UK Trademarks Registry examines such marks since under its current practice it can refuse registration to common surnames.

11 October 2004

Opaque glass design mark not distinctive

In Glaverbel SA v OHIM, the European Court of Justice has upheld the OHIM's decision to refuse the registration of a design applied to the surface of glass products as a Community trademark. The court agreed that, among other things, the design would be perceived primarily as a technical means of rendering the glass opaque.

01 October 2004

Community marks now stepping stones to international protection

The link between the Community trademark and the Madrid Protocol is effective as of today. This means that applicants in countries party to the protocol can designate the entire European Union for protection with an international application. Similarly, if an applicant files a Community trademark, it will have six months to file an international application to designate other states within the Madrid system with the same priority date.