On - my birthday - October 22, 2009 the Belgian Supreme Court ('Hof van Cassatie van België') decided an interesting case between the Benelux Organisation for Intellectual Property (BOIP) and Janssen Pharmaceutica with regard to the registration in the Benelux of 'Summer Skin' as a trade mark for goods in class 3 and 5 (RoC cosmetics). BOIP had refused to register the trade mark, probably because it was deemed to be descriptive for (features of) the goods, but the Brussels' Court of Appeal  apparently came to another conclusion. The Court of Appeal found that 'Summer Skin' was not descriptive and distinctive. According to the Court of Appeal the word combination 'Summer Skin' is a sign which results from the use of the goods for which it is used. It took into consideration for example that in the perception of the target public in the Benelux 'summer skin' has no crude commercial tenor, but instead reflects fantasy and even to a certain extent appeals to an atmospere of euphoria. Thus - concluded the Court of Appeal - 'Summer Skin' - considered in its entirity - is to a certain extent unmistakably recognizable for the goods for which the sign is registered as a trade mark. Although the Court of Appeal took into account too that the sign is to a certain extent descriptive  - also in the Benelux although the sign consists of a combination of English words - the Court of Appeal did not consider that to be decisive:  it ruled that the two words are joined in a connection that considered in its entirity can not be reduced to their sole combination. Besides that the Court of Appeal considered that it had been established that the combination of the two words as such do not have a certain meaning, but refer to a result in demand after use of the goods or to pleasant circumstances. The decision of the Court of Appeal however has found no favour in the eyes of the Belgian Supreme Court. With reference to the ECJ's decisions in Koninklijke KPN Nederland (case C-363/99) and Campina Melkunie (case C-265/00) the Belgian Supreme Court establishes that according to art. 3 par. 1 under b and c of Directive 89/104/EEC and the applicable provisions of the Benelux Convention on Intellectual Property (art. 2.11.1 b and c) a trade mark that describes a feature of goods for that same reason necessarily lacks distinctiveness. Furthermore the Supreme Court finds that a registration of a name as a trade mark should be refused if it can be used as a description for (a feature of) the goods for which the trade mark is registered. That will do: de facto use as such is not needed. The Supreme Court refers to the ECJ decisions in Wrigley (C-191-01), Koninklijke KPN Nederland and Campina Melkunie. Therefore the decision of the Court of Appeal was set aside.

And more news from the OHIM:  on its website the Office today informs us that the

"CTM Bulletin goes daily

From Monday 23 November OHIM will start publishing Community Trade Mark registrations on a daily basis (Monday-Friday). The move to publishing Part B of the CTM Bulletin every working day will provide a more accurate and up-to-date service for our customers.

A Swiss individual registered the word CANNABIS as CTM for beer, wine, spirits and other alcoholic beverages. A German brewery filed for cancellation, and the Cancellation Division cancelled the mark. Both the 2nd Board of Appeal as well as the CFI dismissed the appeals against the decision:

29      Against that background, it must be ascertained whether the average consumer, who is reasonably well informed and reasonably observant and circumspect, may think, merely on seeing a beverage which bears as a trade mark the word sign CANNABIS, and no other additional element, that the mark at issue constitutes a description of the characteristics of the goods in question.

30      In that regard, it must be pointed out that, as is apparent from paragraphs 27, 29 and 30 of the contested decision, there is a material link between the sign CANNABIS and certain characteristics of the abovementioned goods. As is apparent from the documents submitted by OHIM and the intervener, cannabis is habitually used in the manufacture of numerous foodstuffs, including beer and certain beverages. It is apparent from the same documents that some beers consisting of cannabis are currently present on the European foodstuffs market.

31      Furthermore, the word ‘cannabis’ is a Latin scientific term which is well known, first, in a number of European Community languages, as is apparent from paragraph 24 of the contested decision and as the applicant himself demonstrates in the application, and, secondly, to the general public as a result of media coverage, rendering it comprehensible to the target consumer throughout the Community (see, to that effect and by analogy, Case C-421/04 Matratzen Concord [2006] ECR I-2303, paragraph 32).

32      Those circumstances explain why, when he sees an alcoholic beverage or a beer bearing the trade mark CANNABIS, the average Community consumer will immediately perceive, without further thought, a description of the characteristics of the goods in question, in particular of cannabis, which is one of the ingredients which may be used as a flavouring in the manufacture thereof.

"Hanf-Bier" (hemp beer) was actually quite popular in Switzerland some years ago. No hopes of getting high from it, though - food laws prohibit the use of THC containing hemp to produce food stuffs (a hint to readers who would like to taste it: store the bottle horizontally; if kept upright, the hemp flavour collects at the bottom and the last sip tastes like bong-water. Not that I would know what bong-water tastes like, of course).

T‑234/06