Meltdown For Metallic Mark

Back from its holidays the Court of First Instance of the European Communities has lost no fourth dimension inwards dismissing weak appeals against the refusal of OHIM to grant Community merchandise marks inwards undeserving cases. Today's victim, inwards Joined Cases T-367 to 369/02, was Wieland-Werke AG of Ulm, Germany. WW had applied to register the words SnTEM, SnPUR as well as SnMIX for "metallic semi-finished products inwards the shape of sheets, strips, wires, tubes, sections, rods or the like, peculiarly inwards non-ferrous metals, such equally copper or a copper alloy, having a metallic element coating on i side or both sides peculiarly of tin or a tin alloy", all inside Class vi of the Nice Classification. The examiner was unimpressed. In his opinion, the CFI stated:

"the chemical part ‘Sn’ represents the chemic symbol for tin. The chemical part ‘TEM’ is the abbreviation used inwards the scientific as well as technical sphere for the discussion ‘tempered’ inwards connecter alongside alloys. Consequently, the merchandise score SnTEM agency ‘tempered tin’. The chemical part ‘PUR’ agency pure, as well as then the merchandise score SnPUR agency ‘pure tin’. Last, according to the examiner, the chemical part ‘MIX’ corresponds to the High German for ‘mixture’ as well as the merchandise score SnMIX thence agency ‘tin alloy’".

The examiner likewise establish that each of the merchandise marks sought was of such a nature equally to deceive the populace inasmuch equally the products inwards honour of which the applications were made were non consistent alongside those indications. The Board of Appeal upheld the examiner's decision, as well as then WW appealed to the CFI, which had no difficulty dismissing the appeal. In the CFI's see (at paras twoscore to 42):

"Finally, as well as then far equally concerns the applicant’s declaration that the damage SnTEM, SnPUR as well as SnMIX are non used to designate the intermediary products themselves, or i of their essential characteristics or even as well as then the character next from the handling they bring undergone, it is plenty to discovery that it is non necessary that the signs as well as indications composing the score that are referred to inwards Article 7(1)(c) of Regulation 40/94 should truly hold upwardly inwards exercise at the fourth dimension of the application for registration inwards a vogue that is descriptive of goods or services such equally those inwards relation to which the application is filed, or of characteristics of those goods or services. It is sufficient that those signs as well as indications could hold upwardly used for such purposes .... Nor tin the latter rely on Case T-193/99 Wrigley v OHIM (DOUBLEMINT), laid upwardly aside past times the judgment inwards OHIM v Wrigley, since it is plenty that the sign inwards query should designate, inwards at to the lowest degree i of its possible meanings, a feature of the goods or services concerned (see OHIM v Wrigley, paragraph 32 and, past times analogy, Campina Melkunie, paragraph 38).

The applicant’s declaration that at that topographic point are other damage for designating the same characteristics of its products is non persuasive. It is immaterial whether or non at that topographic point are synonyms capable of designating the same characteristics of the goods or services mentioned inwards the application for registration. Although Article 7(1)(c) of Regulation 40/94 provides that, if the Earth for refusal laid upwardly out at that topographic point is to apply, the score must consist 'exclusively’ of signs or indications which may serve to designate characteristics of the goods or services concerned, it does non demand that those signs or indications should hold upwardly the precisely vogue of designating such characteristics (see, past times analogy, Campina Melkunie, paragraph 42, as well as Koninklijke KPN Nederland, paragraphs 57 as well as 101).

It follows from all the foregoing considerations that the discussion signs SnTEM, SnPUR as well as SnMIX may serve, inside the pregnant of Article 7(1)(c) of Regulation 40/94, from the betoken of see of the targeted public, to designate essential characteristics of the goods falling inside the categories covered past times the applications for registration".

Wieland-Werke: must await for less descriptive names for its products

observes that CFI illustration constabulary on registrablity is becoming to a greater extent than stable as well as predictable inwards the low-cal of the major ECJ rulings over the final twelvemonth or as well as then on distinctiveness grapheme for discussion marks.