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CLASS 46


Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

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Anthonia Ghalamkarizadeh
Birgit Clark
Blog Administrator
Christian Tenkhoff
Fidel Porcuna
Gino Van Roeyen
Markku Tuominen
Niamh Hall
Nikos Prentoulis
Stefan Schröter
Tomasz Rychlicki
Yvonne Onomor
FRIDAY, 17 OCTOBER 2014
Germany: (No) Lust for Colour!

The German Federal Patent Court (BPatG) has recently dismissed an appeal against the German Patent and Trade Mark Office's (DPMA) decision not to register the figurative mark depicted below. The German words 'Lust auf Farbe' can be translated loosely as 'desire for colour' or 'lust for colour'. The applicant sought to register the sign for various services in Classes 35, 37 and 40, mainly connected to 'advertising', 'accounting', 'maintenance work', 'wood processing', 'varnishing' and 'applying window tint.'

The DPMA rejected the application, finding that the sign was devoid of distinctive character as it merely suggested that the services on offer could trigger a 'lust for colour'. Putting forward an unconventional line of argument, the applicant admitted that this was indeed the intended purpose of the mark, which was why it ought to be perceived as a reference to the provider of the services and not as a mere slogan. In its appeal, the applicant also raised concerns that advertising slogans of multinational corporations were being treated differently from the application of a 'craftsman operating on a regional basis, who had been using the slogan for several years.'

Unfortunately for the applicant, the BPatG was not swayed by these arguments but agreed with the DPMA's point of view. The mark consisted of a grammatically correct sentence and did not contain any figurative features that departed significantly from the layout commonly used in the market. The sign had to be refused registration since at least one of its possible meanings was considered to be descriptive of or, at least, to contain a 'close descriptive link' with the services concerned. Moreover, the Court held that it was not bound by previous registrations in allegedly similar cases. As far as the appeal hinted at an acquired distinctiveness, the applicant's submission was not sufficiently substantiated.

Posted by: Christian Tenkhoff @ 10.56
Tags: BPatG; Absolute Grounds; Distinctive Character; Lust for Colour,
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