And Right Away Inward English...

IPKat friend Tibor Gold has written details of lastly week's CFI decisions, thus far available solely inward French:

The BIC cases

The 2 BIC cases T-262/04 too 263/04, are 99% identical. They each describe of piece of occupation the 3-D shape of a disposable smoker’s lighter.

Usual lip service that all signs are equal simply the populace is non too then used to perceiving shapes equally badges of origin. Nor is the average consumer probable to live attentive to the modest details of lighters that BIC tried to rely on for distinctiveness nether Art.7(1)(b) CTMR.

The lengthier business office of each judgment centred on Art.7(3) – acquired distinctiveness. Here BIC failed because:
1. BIC could non [be bothered to?] provide adequate back upwards for its allegations of massive sales too existence the marketplace leader inward disposable lighters;
2. It provided no or really piffling proof inward ‘substantial parts of the EC’ viz. German-speaking countries too English-speaking countries;
3 . Much of the testify it did provide came for ‘connected persons’ such equally its ain distributors too ain retail outlets which thus could non live given total weight equally compared to independent sources; too finally
4. [à la Jacob inward Philips v Remington, limping TM needing the crutch of a word] Much of the testify it did provide had the give-and-take BIC with too then the operate was non operate of the shape lonely equally a TM.

CLEN/CLEAN.X

T-263/04: the owners of two Castilian national TM registrations for a label score with CLEN equally the dominant give-and-take inward them opposed a CTM appl’n for clean·x. The goods were inward course of report three too essentially the same, cleaning products.

The opposition was rejected past times the OD too past times the BoA too straightaway past times the CFI: the relevant av. consumer was Castilian too s/he would non confuse the signs, mainly because they practice non know English linguistic communication too at that topographic point is the of import too non-negligible extra missive of the alphabet ‘a’ besides equally the final, visually too phonetically rigid ‘x’. The latter makes all the divergence fifty-fifty if the av. consumer does sympathize the English linguistic communication give-and-take ‘clean’.

Moreover, inward Castilian the cite of the missive of the alphabet ‘x’ is pronounced ‘eh-kiss’ (written equally ‘equis’) too then the phonetic comparing is klehn (1 syllable) too kleh-ahnn-eh-kiss (4 syllables)!
Thus no error, distortion or illegality was seen inward the BoA decision.

says cheers Tibor! notes that the touchstone required inward the BIC conclusion is quite a tough i for applicants for shape marks to meet, since oftentimes they volition convey sold their shaped products nether the mark, or with the score on them.