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Portugal: genuine use in trade marks covering TV programs

Description: http://www.marktest.com/wap/i/private/images/news2004/120/olaPORTs.jpg.mrkfYesterday, 27 April 2012, it was published, on the Portuguese Bulletin of Industrial Property, an interesting decision of the Lisbon commercial court which overturned an INPI decision that had rejected the cancellation of the Portuguese Trade Mark no. 366654 “OLÁ PORTUGAL”.

TVI, a private television channel, was the owner of the Portuguese Trade Mark no. 366654 “OLÁ PORTUGAL”, which covered “Television Programs” in the Class 38 of the International Nice Classification. TVI had broadcasted the program “OLÁ PORTUGAL” (unfortunately, this author recalls the show generic jingle) between 9 September 2002 and 30 July 2004.

SIC, a competitor private television channel and the party that requested the cancellation of the trade mark, claimed that this trade mark had not been put to genuine use since that date and, consequently, in the last five years. TVI claimed that it had used the trade mark between 22 June and 11 September 2009, since, in one of its programs (“VOCÊ NA TV”), had included a specific moment identified as “OLÁ PORTUGAL”.

Following SIC arguments, the court considered that the insertion of a specific moment on a television program did not constitute a genuine use of the trade mark for “Television Programs”. In order to reach that conclusion, the court resorted to the definition on Directive 2010/13/EU, of the European Parliament and of the Council, of 10 march 2010, and stated that a TV program was every individual item within a schedule or a catalogue with an informative or entertainment content which is intended to be broadcast on television. With this definition in mind, the court stated that the insertion of a certain item in a program television could not be accounted as genuine use of a trade mark covering “Television Programs”, since that specific moment lacked autonomy in relation to the television schedule and that autonomy is an essential requirement of what is to be understand as a television program.

Consequently, the court accepted the appeal, overturned the INPI decision and declared the cancellation of the Portuguese Trade Mark no. 366654 “OLÁ PORTUGAL”.

Posted by: Pedro Malaquias @ 19.51
Tags: Portugal, genuine use, non-use, court decision,
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