Under decision No. 886/2009, the Greek Council of State (the country's supreme administrative court) upheld judgments of the lower courts rejecting Colgate Palmolive's application to register as a trade mark in Greece (in class3) a representation of its toothpaste product, i.e. three parallel curves (two color ones and a white in the middle - unfortunately the device is not available but it looks something like the tiny picture above left). The Greek Trade Marks Administrative Committee, as well as the first instance and appellate administrative courts held that the device is devoid of any distinctive character. The Council of State took the same route and, further, rejected Colgaste's argument that the claimed device is distinctive as it has already been accepted as part of compound "Colgate total & device" trade mark. 

The court's judgment also includes a notable point regarding the crowded field argument. In line with its above  argument, Colgate claimed that the trade mark in question should be accepted as the company owns several other trade marks incorporating similar representations. The Council of State replied that every trade mark is "judged autonomously", citing its earlier jurisprudence in judgment No. 2966/2004. This seems to go against the Greek Office's practice, as ,indeed, the crowded field argument will generally "work" before the Greek Trade Marks Administrative Committee.  

No matter if its design cannot be registered, a toothpaste will help a healthy smile.

 The very useful OHIM's online listing of decisions from several European CTM Courts has just published a judgment favourable to the Ford Motor Company (“Ford”) before the Spanish CTM Court.

In brief: Ford filed a trade mark infringement action against a Spanish undertaking that sold automobile spare parts bearing the FORD oval logo.

The 140-character messaging service will be used by the OHIM "to draw attention to news items and events, and also for informal exchanges. However, the service is not designed for the discussion of individual files, or for making official complaints. Comments should also not be taken as evidence of policy changes." More precise guidelines have been set up regarding use of Twitter by the Office.

Some IP Offices are already on Twitter, such as WIPO, the EPO, the Denmark IPO, the United Kingdom IPO and the Benelux IPO. MARQUES and Class 46 themselves has been on Twitter for a while and some of the Class 46 team members can also be found tweeting from time to time (Jeremy, Birgit, Thomas, Gino, Frédéric).

The OHIM YouTube channel already features 16 videos

1. Where perfume and cosmetic testers (i.e. samples for use in demonstrating products to consumers in retail outlets) and dramming bottles (i.e. containers from which small aliquots can be taken for supply to consumers as free samples) which are not intended for sale to consumers (and are often marked "not for sale" or "not for individual sale") are supplied without charge to the trade mark proprietor's authorised distributors, are such goods "put on the market" within the meaning of Article 7(1) of First Council Directive 89/104/EEC of 21 December 1988 ("the Trade Marks Directive") and Article 13(1) of Council Regulation 40/94 of 20 December 1993 on the Community trade mark ("the CTM Regulation")?

2. Where the boxes (or other outer packaging) have been removed from perfumes and cosmetics without the consent of the trade mark proprietor, does this constitute a "legitimate reason" for the trade mark proprietor to oppose further commercialization of the unboxed products within the meaning of Article 7(2) of the Trade Mark Directive and Article 13(2) of the CTM Regulation?

3. Does it make a difference to the answer to question to 2 above if: a. as a result of the removal of the boxes (or other outer packaging), the unboxed products do not bear the information required by Article 6(1) of Council Directive 76/768/EEC of 27 July 1976 ("the Cosmetics Products Directive"), and in particular do not bear a list of ingredients or a 'best before date'? b. as a result of the absence of such information, the offer for sale or sale of the unboxed products constitutes a criminal offence according to the law of the member state of the Community in which they are offered for sale or sold by third parties?

4. Does it make a difference to the answer to question 2 above if the further commercialization damages, or is likely to damage, the image of the goods and hence the reputation of the trademark? If so, is that effect to be presumed, or is it required to be proved by the trade mark proprietor?

5. Where a trader which operates an online marketplace purchases the use of a sign which is identical to a registered trade mark as a keyword from a search engine operator so that the sign is displayed to a user by the search engine in a sponsored link to the website of the operator of the online marketplace, does the display of the sign in the sponsored link constitute "use" of the sign within the meaning of Article 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation? 6. Where clicking on the sponsored link referred to in question 5 above leads the user directly to advertisements or offers for sale of goods identical to those for which the trade mark is registered under the sign placed on the website by other parties, some of which infringe the trade mark and some which do not infringe the trade mark by virtue of the differing statuses of the respective goods, does that constitute use of the sign by the operator of the online marketplace "in relation to" the infringing goods within the meaning of 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation?

7. Where the goods advertised and offered for sale on the website referred to in question 6 above include goods which have not been put on the market within the EEA by or with the consent of the trade mark proprietor, is it sufficient for such use to fall within the scope of Article 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation and outside Article 7(1) of the Trade Mark Directive and Article 13(1) of the CTM Regulation that the advertisement or offer for sale is targeted at consumers in the territory covered by the trade mark or must the trade mark proprietor show that the advertisement or offer for sale necessarily entails putting the goods in question on the market within the territory covered by the trade mark?

8. Does it make any difference to the answers to questions 5-7 above if the use complained of by the trade mark proprietor consists of the display of the sign on the website of the operator of the online marketplace itself rather than in a sponsored link? 9. If it is sufficient for such use to fall within the scope of Article 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation and outside Article 7(1) of the Trade Mark Directive and Article 13(1) of the CTM Regulation that the advertisement or offer for sale is targeted at consumers in the territory covered by the trade mark: (a) does such use consist of or include "the storage of information provided by a recipient of the service" within the meaning of Article 14(1) of the E-Commerce Directive? (b) if the use does not consist exclusively of activities falling within the scope of Article 14(1) of the E-Commerce Directive, but includes such activities, is the operator of the online marketplace exempted from liability to the extent that the use consists of such activities and if so may damages or other financial remedies be granted in respect of such use to the extent that it is not exempted from liability? (c) in circumstances where the operator of the online marketplace has knowledge that goods have been advertised, offered for sale and sold on its website in infringement of registered trade marks, and that infringements of such registered trade marks are likely to continue to occur through the advertisement, offer for sale and sale of the same or similar goods by the same or different users of the website, does this constitute "actual knowledge" or "awareness" within the meaning of Article 14(1) of the E-Commerce Directive?

9. Where the services of an intermediary such as an operator of a website have been used by a third party to infringe a registered trade mark, does Article 11 of European Parliament and Council Directive 2004/484 of 29 April 2004 on the enforcement of intellectual property rights ("the Enforcement Directive") require Member States to ensure that the trade mark proprietor can obtain an injunction against the intermediary to prevent further infringements of the said trade mark, as opposed to continuation of that specific act of infringement, and if so what is the scope of the injunction that shall be made available?

The action was dismissed. The court held that the DAWA packaging, or rather, those elements of the packaging also appearing on Dr. Oetker's packaging, were not distinctive ab ovo. The standard for distinctiveness ab ovo had to be high. It was not sufficient to argue that Dr. Oetker "could have" chosen another trade dress. Competitors are free to market products that look alike other products on the market if all the products' trade dresses look similar (which was the case according to the decision).

Acquired distinctiveness was not claimed (to my knowledge, I am relying on a summary of the case).

German summary of the case here.