In its decision of 29 September the CFI considered the issue of the absolute grounds for refusal in relation to The Smiley Company SPRL's mark (T 139/08). The applicant claimed that the sign, registered for the rather interesting variety of classes (14- jewelery, 18- trunks and suitcases and 25- clothes and footwear), was not devoid of distinctive meaning and was recognisable by the relevant public. The applicant submitted that the the little vertical stroke on the half smile sign was not intentional, but rather the result of poor print quality. Interestingly enough, having made a formal note of the claim, the Court proceeded to ruling upon the above issue thus making it of primary importance. Otherwise the subject matter before the Court would be changed. An undesirable situation, of course.
The CFI chose to criticise the artistic creativity and imaginativeness of the sign's creator whilst assessing the mark's distinctiveness. Eventually, a “small stroke in the middle of the curve, towards the bottom” was held to be a very simple and banal design, which can not identify the commercial origin of the goods. Apparently, a stroke could not be instantly memorised by an “even relatively attentive member of the public”, that can recognise signs such as simple stripes. Indeed, a small stroke does not create an overall impression of a surface area to the extent that a stripe does...
In the end the Court did pay attention to the applicant's actual argument that the stroke is not of paramount importance and the sign is in fact part of the Registered Community Trade Mark (smiley). However, even in this scenario the average consumer is unlikely to find resemblance between, and subsequently, to put trust in, the registered smiley mark, the half smile and the imperfect picture of the sign he may have in mind.
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