Friday, 30 October 2009

Exclamation mark not a good trade mark

A few years ago, perhaps, it wouudn't even have needed saying, but seeing someone trying to register just an exclamation mark (and an exclamation mark in a box) as a trade mark is no longer a matter for astonishment. Thank goodness, the Court of First Instance has upheld the Office for Harmonisation in rejecting this nonsense.

The cases are Case T-75/08 and Case T-191/08, both Joop! GmbH v OHIM, available only in French and German. Never mind, there isn't much to read, and I find this stuff as good to read in French as in English ... I stay awake better, have to concentrate harder. The Court decided that the trade marks were non-distinctive under Article 7(1)(c) of the CTM regulation. I'm releived.

Not only were the applicants seeking to register a sign that must surely be allowed to remain part of commercial free speech, and I can't believe could ever, in a month of Sundays, come to distinguish their goods from those of others - but they were trying to do so for a vast array of goods. Why? Because they could, no doubt. And if it's possible, businesses have to try to secure what they can before someone else does.

This landgrab is an unedifying spectacle. It's leading people to register things that they aren't een using as trade marks - and never will. I have a client at present facing opposition from a big company with a formidable collection of trade marks. Their brand combines an adjective and a noun, and taken together it's a pretty good two-word trade mark. It's what they call the company, and it's what they call the product - and the adjective, alone, is neither, but they have registered it as a trade mark anywway.

Being charitable, I have to assume that Big Trade Mark Owner has grabbed the adjective registration to ensure it isn't available for anyone else to take, and create problems for them. but there are many, many others who would want to use that ordinary English word, perhaps with another noun or in some other way that's never going to cause confusion. maybe, I hope, we'll be hauling them to the Board of Appeal or the Court in due course, following the course taken with Joop!'s misguided-but-understandable effort.

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