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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.

23 March 2004

Change to examination procedure for surnames signalled

In Nichols plc v Registrar of Trademarks, Advocate General Colomer has issued an opinion clarifying the principles relating to the registration of surnames as trademarks. In contrast to the UK Trademarks Registry's current examination practice, Colomer opined that, in principle, surnames should be examined according to the same criteria as other types of trademarks.

12 March 2004

Shape marks for pouches do not stand up to CFI test

In Deutsche SiSi-Werke GmbH & Co Betriebs KG v OHIM, the European Court of First Instance has refused the registration of the shapes of stand-up pouches as three-dimensional Community marks for fruit juice. The court applied stricter criteria than in Nestlé Waters, where it found that a minimum degree of distinctive character is sufficient to warrant registration.

11 March 2004

Neologism comprising descriptive elements is not registrable

The ECJ has ruled that a mark consisting of a neologism made up of elements that are themselves descriptive of the characteristics of the goods or services covered by the registration is itself descriptive of those characteristics pursuant to Article 3(1)(c) of the Community Trademark Directive, unless there is a perceptible difference between the neologism and the mere sum of its parts.

08 March 2004

ECJ urged to overturn Libertel

In the case of Heidelberger Bauchemie GmbH, Advocate General Léger has issued an opinion stating that colour combinations are not registrable as trademarks. The opinion seems to contradict the ECJ's decision in the Libertel Case, in which it held that a single colour can, in principle, be registered as a trademark.

05 March 2004

BUDĚJOVICKÝ BUDVAR registrations upheld by Board of Appeal

In two cases opposing Anheuser-Busch and Budějovický Budvar, the OHIM Board of Appeal has upheld the latter's registrations of marks that include the words 'Budějovický Budvar'. The board found that the marks are dissimilar visually, phonetically and conceptually to Anheuser-Busch's BUD mark, thus making confusion unlikely.

24 February 2004

Bottle shape mark decision may be a breakthrough

In Nestlé Waters France v OHIM, the European Court of First Instance has overturned a decision to refuse the registration of the three-dimensional shape of a bottle as a Community trademark. It ruled that a shape, made up of various elements that individually may be devoid of any distinctive character, can be registered if those elements are combined in such a way as to give the shape the required level of distinctiveness.