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MONDAY, 1 DECEMBER 2014
General Court: do you think Eau de cologne comes from Köln?
In case T‑556/13, Verband der Kölnisch-Wasser Hersteller eV
(Cologne, Germany), applied for the
CTM Original Eau de Cologne
for the following goods in Class 3 “ Kölnisch Wasser” ("colognes")
OHIM rejected the registration on the following
grounds: it is a descriptive indication of the products concerned within the
meaning of Article 7, paragraph 1 c) of CTMR. Further it is also devoid of any
distinctive character within the meaning of Article 7, paragraph 1 b) of CTMR
and it is the usual name of the product concerned within the meaning of Article
7 paragraph 1 d) CTMR.
The applicant appealed claiming that the Board erred
by considering that the expression “eau de cologne” was descriptive for “colognes”
on the basis that the element "cologne" contained no indication of
geographical origin because there is no city in Germany in the name of Cologne
(rather it is Köln). Further, the applicant
considered that, on the assumption that the relevant public understands the
term "cologne" as the name of the city of the same name, the item
"original" in front of the element "cologne" causes a "relocation"
of that name, and the mark would be
understood as an indication of geographical origin. Moreover, the applicant
claimed that the Board of Appeal did not properly assess the commercial
standards embodied "Begriffsbestimmungen Kölnisch für Wasser"
(definitions of cologne) in 1939 its reasoning implies that each manufacturer
could designate their product as "Original Eau de Cologne",
regardless of whether or not the product comes from the city of Cologne, which
would be misleading.
However, the General Court rejected this argument: given
its significance, this sign will be perceived by the relevant public as directly
describing the nature of the product concerned, which is precisely the cologne.
As the Board of Appeal found, the element 'cologne' of the sign in question is
the translation in French of the product concerned, that the applicant did not
dispute. It will also be perceived as denoting one of its characteristics, ie
its original character, the relevant public is well aware that this is an eau
de Cologne authentic and not a copy.
It follows that
the sign in question is contrary to Article 7, (1) c) CTMR.
Furthermore, the applicant did not adduce any evidence to challenge the evidence, in this
case two books and a judgment of the Bundesgerichtshof (Federal Court of
Justice, Germany), on which the Board of Appeal based its decision in particular
to determine, that the term "cologne" was not considered an
indication of geographical origin but as an indication of the nature of the
The General court dismissed the appeal.
Posted by: Laetitia Lagarde @ 17.04
General court,eau de cologne, cologne, Köln ,
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