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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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Art works as trade marks, public policy -- and a reference to the EFTA Court

A trade mark dispute is heading to the EFTA Court for an advisory opinion. It's Case E-05/16 Norwegian Board of Appeal for Industrial Property Rights, appeal from the Municipality of Oslo. We haven't received any specific information concerning the background, but this reference may concern attempts to register as trade marks the works of artist Edvard Munch and sculptor Gustav Vigeland (one of whose best-known works appears on the right). If any reader has direct information concerning this case, do please let us know.

The questions referred to the EFTA are:

1.       May trade mark registration of copyright works, for which the protection period has expired, under certain circumstances, conflict with the prohibition in Article 3(1)(f) of the Trade Marks Directive on registering trademarks that are contrary to 'public policy or … accepted principles of morality'?

2.       If question 1 is answered in the affirmative, will it have an impact on the assessment that the copyright work is well-known and of great cultural value?

3.       If question 1 is answered in the affirmative, may factors or criteria other than those mentioned in question 2 have a bearing on the assessment, and, if so, which ones?

4.       Is Article 3(1)(e)(iii) of Directive 2008/95/EC applicable to two-dimensional representations of sculptures?

5.       Is Article 3(1)(c) of Directive 2008/95/EC applicable as legal authority for refusing trademarks that are two or three-dimensional representations of the shape or appearance of the goods?

6.       If question 5 is answered in the affirmative, is Article 3(1)(b) and (c) of Directive 2008/95/EC to be understood to mean that the national registration authority, in assessing trade marks that consist of two or three-dimensional representations of the shape or appearance of the goods, must apply the assessment criterion of whether the design in question departs significantly from the norm or customs of the business sector, or may the grounds for refusal be that such a mark is descriptive of the shape or appearance of the goods?

If you would like to comment on this case so that the UK government can decide if it wishes to make representations, please email policy@ipo.gov.uk by 6 May 2016.

Posted by: Blog Administrator @ 03.11
Tags: EFTA Court, trade marks and public policy,
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