April 30, 2015

Designer Disaster!

The EU General Court has confirmed that two figurative Community Trade Marks (CTMs) for chequerboard patterns had been invalidly registered due to a lack of distinctive character contrary to Article 7(1)(b) of the CTM Regulation (207/2009/EC) and a failure to acquire distinctive character through use (Article 7(3)).

In Case T-359/12, the CTM represented a brown and beige chequerboard pattern and in Case T-360/12, it represented a light and dark grey chequerboard pattern, both with a weft and warp structure (see images). The CTMs were registered for leather and various other goods. LV did not dispute that the goods were for everyday use and that the relevant public consisted of the average EU consumer.

The court held that a key factor was that the marks coincided with the appearance of the products as the pattern covered some or all of the surface.  The presentation of a chequerboard in the alternating colours of brown and beige (or light and dark grey), and the impression of interlacing threads did not contain any notable variation in relation to the conventional presentation of the goods so that the relevant public would perceive only a commonplace and everyday pattern.

Rather more surprising is that LV failed in its argument that the two chequerboard patterns had become distinctive of LV through use. The court held  that the applicant had not filed sufficient evidence of use. For example, it had not filed any document containing information as to the market-share of the CTMs. We should expect that LV will appeal and file as much evidence of the distinctiveness of the trade marks as it can!

For further questions please feel free to contact Stephen Welfare on 020 7583 2222.

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