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17 June 2004

Parties to share costs where they jointly end proceedings, court rules

The European Court of First Instance has ruled that health product manufacturer Sunrider Corporation must bear its own costs in relation to the defence of two separate opposition proceedings, which were subsequently dropped. It held that all the parties were responsible for ending the proceedings because Sunrider had amended its trademark applications while the opposing parties had withdrawn their oppositions.

07 June 2004

Detergent tablet shape mark applications are a wash out

In Procter & Gamble Company v OHIM, the ECJ has upheld five decisions of the Court of First Instance to refuse registration of Procter & Gamble's three-dimensional shape marks for washing machine or dishwasher tablets on the basis that they were devoid of distinctive character. The ECJ found that the shape of the tablets was dictated by function and their colours were common for detergents.

01 June 2004

OHIM clarifies language regime

Following the ECJ's decision in the Kik Case, the president of the OHIM has issued a communication that clarifies the use of the nominated second language in correspondence relating to application, opposition and cancellation proceedings. The OHIM will now communicate with the applicant in the language used for filing the application unless it informs the OHIM that it wishes to receive all communications in the second language.

26 May 2004

Twelve-star mark refused registration

The European Court of First Instance has upheld a decision to refuse registration of a black and white pictorial mark made up of twelve stars encircling the letters 'ECA' on a black background. The CFI held that the mark could not be registered as it was similar to the emblem of the European Union, which is protected by Article 6ter of the Paris Convention.

25 May 2004

El Corte Inglès fails in bid for MUNDICOR registration

In two joined cases, the European Court of First Instance has dismissed appeals by Spanish department store El Corte Inglès against decisions of the OHIM to allow two separate oppositions to the registration of El Corte Inglès's MUNDICOR mark. The court held that there was a likelihood of confusion with earlier MUNDICOLOR registrations.

24 May 2004

HAPPYDOG leads to conflict with ECJ ruling

The European Court of First Instance has refused registration of HAPPYDOG as a Community trademark on the grounds that it was confusingly similar to an earlier HAPPIDOG mark. Although not required to do so, it considered the application of Article 12(b) of the Community Trademark Regulation and came to a different conclusion to that of the ECJ in an earlier analysis of the same wording in Article 6(1)(b) of the Community Trademark Directive.

20 May 2004

Artificial grass manufacturer loses trademark turf war

In Fieldturf Inc v OHIM, the European Court of First Instance has upheld a decision to refuse the registration of the word mark LOOKS LIKE GRASS…FEELS LIKE GRASS…PLAYS LIKE GRASS as a Community trademark for a synthetic playing surface for various sporting activities. It held, among other things, that the mark lacked distinctive character and would be perceived solely as a promotional slogan.

22 April 2004

Opinion may clarify principles behind lack of distinctiveness

In SAT.1 SatellitenFernsehen GmbH v OHIM, Advocate General Jacobs has clarified the principles to be applied when assessing whether a mark lacks distinctiveness pursuant to the Community Trademark Regulation. Jacobs examined the relationship and highlighted the differences between the grounds for refusal set out in subparagraphs (a) to (c) of Article 7(1).

19 April 2004

Interpretation of genuine use affirmed by ECJ

In La Mer Technology Inc v Laboratoires Goemar SA, the ECJ has affirmed that 'genuine use' of a mark must be interpreted to mean use of a trademark in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered. The court added that the use must be for the furtherance of "a real commercial purpose".

15 April 2004

POSTKANTOOR pushes BABY-DRY test one step further

In Koninklijke KPN Nederland NV v Benelux Trademarks Office, the ECJ has clarified the test to be applied to descriptive signs. It indicated that the BABY-DRY test that a mark can be registered if there exists any perceptible difference between the descriptive terms making up the mark and terms used in everyday language will no longer suffice.

14 April 2004

Amendments to Community Trademark Regulation now in force

Council Regulation 422/2004, which amends the Community Trademark Regulation, has come into force. Among other things, the amendments (i) lift the restrictions on the ownership of Community trademarks so that any natural or legal person can own such a mark, and (ii) provide for greater protection of designations of origin or geographical indications relating to agricultural products and foodstuffs.

13 April 2004

Interaction between phonetic and conceptual elements clarified

In Mülhens GmbH & Co KG v OHIM, the European Court of First Instance has issued a decision that explains how the interaction between the phonetic and conceptual elements of trademarks should be evaluated when assessing the likelihood of confusion. It held that where at least one of the marks has a meaning that the public understands immediately, conceptual differences between the marks at issue may counteract any phonetic similarity.

08 April 2004

Court of First Instance bends to CONFORFLEX opposition

In Koubi v OHIM, the European Court of First Instance has refused the registration of CONFORFLEX for bedroom furniture on the grounds that it was confusingly similar to prior registered FLEX marks used for the same type of goods. It held that the addition of the term 'confor' merely complemented the term 'flex' rather than enhancing the distinctive character of the mark as a whole.

06 April 2004

ECJ clarifies criteria for national shape marks

The ECJ has ruled that where the nature of the products means that they have to be packaged, the shape of the packaging can be considered to be the shape of the product itself. Accordingly, registration can only be granted if the shape includes distinctive elements, which should be assessed by each national office according to national commercial practice only.

24 March 2004

Article 119 refusal highlights stricter approach to descriptiveness

In Telefon & Buch VerlagsgmbH v OHIM, the ECJ has dismissed an appeal against the refusal to register the marks UNIVERSALTELEFONBUCH and UNIVERSALKOMMUNIKATIONSVERZEICHNIS as Community trademarks. The ECJ applied Article 119 of its Rules of Procedure and rejected the appeal without a hearing on the grounds that it was obviously unfounded.