OHIM Board of Appeal fellow member David Keeling delivered an entertaining in addition to highly sensible verbalise on unconventional merchandise marks to the Competition Law Association inward London final calendar week (writes Jordgubbar, an IPKat mole). Keeling contrasted diverse successful in addition to unsuccessful attempts to register ‘non-traditional’ or ‘unconventional’ signs such every bit 3-D marks, colouring cloth marks, olfactory marks, gustatory marks, sounds marks, slogans, activeness marks, holograms in addition to pose marks. The message was: “look for an underlying consistent develop of legal reasoning in addition to you’ll live on disappointed”. By juxtaposing “accepted” in addition to “refused” signs for which Community merchandise range (CTM) registration had been sought, Keeling left the clear impression that at that spot was no certainty inward this expanse in addition to that potential CTM applicants mightiness too live on advised to “have a go”.
Keeling warned that 2 big hurdles facing applicants for unconventional marks are (i) graphical representation of the sign in addition to (ii) distinctiveness (Article 2 of the Trade Mark Directive in addition to Article 4 of the Community Trade Mark Regulations). And don’t forget world policy considerations -- granting government don’t ordinarily similar to grant a potential monopoly correct over a sign where a patent or pattern application may live on to a greater extent than relevant, specially given the potential life of a merchandise mark.
In conclusion Keeling stated that, amongst the exception of applications to register odor or gustation marks, which seem doomed to fail, the jurisprudence of the European Court in addition to Court of First Instance advise that registration may live on available for many types of unconventional marks. The close mutual reasons for the to a greater extent than unconventional marks failing to run across the criteria for registration were lack of distinctiveness in addition to difficulties inward graphically representing signs. Even if a sign did overcome these obstacles in addition to was registered, their orbit of protection would ordinarily live on real narrow.
welcomes David Keeling’s candour inward addressing the consistency of OHIM decisions in addition to the likelihood of an applicant succeeding inward obtaining registration. The conceptual problems raised past times these merchandise range oddities are non inconsiderable and, although such marks are infrequently applied for in addition to often rarely used inward commerce, the difficulties they drive reverberate key issues inward merchandise range law, issues such every bit (i) what a merchandise range genuinely is, (ii) how produce yous know what the applicant has registered in addition to (iii) how tin mail away yous create upward one's heed the orbit of protection which registration confers.
Leading European cases on the registration of shapes: Procter & Gamble v OHIM (soap shape, xvi Feb 2000); Philips v Remington ECJ judgment of eighteen June 2002 (shape of nipper heads); Linde, Winward in addition to Rado (ECJ judgment of eight Apr 2003: 3-D fork-lift truck); Procter & Gamble v OHIM (CFI (19 September 2001 (shape of a washing tablet) in addition to Unilever v OHIM (5 March 2003: roughly other shape of a washing tablet); DaimlerChrysler v OHIM (6 March 2003: shape of a car radiator grill).
Cases on the registration of colour marks: Libertel (ECJ Judgment of half dozen May 2003), KWS Saat v OHIM (9 Oct 2002)
Smell in addition to gustation marks: Sieckmann (ECJ, 12 Dec 2002), Eli Lilly & Co.’s Application (OHIM Board of Appeal, iv August 2003, gustation of artificial strawberries for pharmaceutical products)
Sound marks: Shieldmark v Kist (3 Apr 2003, Advocate General’s Opinion, ECJ).
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