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TUESDAY, 30 APRIL 2013
General Court: (un) RELY-ABLE
In Case T-640/11, the applicant Boehringer Ingelheim International GmbH, obtained from the International Bureau of the World Intellectual Property Organisation (WIPO) an international registration designating the European Community for the word sign RELY-ABLE for services in Class 38: ‘Provision of access via the Internet to medical and pharmaceutical information concerning pharmaceutical preparations’; Class 41: ‘Publication of printed matter (except for promotion purposes) with the results of clinical trials for pharmaceutical preparations (also in electronic form)’ and Class 42: ‘Conducting clinical trials for pharmaceutical products’.
The OHIM, as affirmed by the General Court, rejected the registration and considered that the word mark RELY-ABLE was not distinctive, on the ground that it could not be perceived and memorized by the relevant consumer as a trade mark and that the sign as a whole would be perceived as nothing more than a promotional message whose aim is to highlight an important positive aspect of the services, namely that they are reliable.
In particular, the Board of Appeal expressed a view on how two characteristics of the sign would be perceived by the relevant public: the misspelling and the promotional message. Firstly, the relevant public would directly and unambiguously perceive the sign RELY-ABLE as a deliberate misspelling of the English word ‘reliable’ to make it more ‘catchy’, but would not perceive that spelling as particularly fanciful or arbitrary. Secondly, the relevant public would directly perceive the message communicated by the sign RELY-ABLE as a whole, as a banal laudatory message relating to an important characteristic of clinical trial services for pharmaceutical products, namely their reliability. The obvious promotional meaning of the sign RELY-ABLE eclipses any impression that the sign could indicate commercial origin. According to the Board of Appeal, misspellings have in fact become a frequent feature of promotional messsages.
Posted by: Laetitia Lagarde @ 16.40
General Court, absolute grounds, rely-able, promotional, misspelling,
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