While the IPKat was enjoying a refreshing holiday cat-nap, the European Court of Justice and its prolific side-kick the Court of First Instance have not been sleeping. In the past few days they have delivered the following decisions:

* Case C-136/02 P Mag Instruments v OHIM, in which the ECJ dismissed Mag's final appeal against OHIM's refusal to allow the registration of its attractive torch shapes as Community trade marks for torches (the IPKat hopes to blog this decision in more detail soon);

* Case T-117/03 (and three other cases) New Look Ltd v OHIM. New Look applied to register as Community trade marks for clothing four figurative marks comprising the terms NLSPORT, NLJEANS, NLACTIVE and NLCollection. These applications were successfully opposed by the proprietor of an earlier registered figurative mark, containing the letters NL, for the same goods. The Court of First Instance dismissed New Look's appeal, confirming that there was a likelihood of confusion between the products of the respective parties. The CFI said (at para.51):
"Nevertheless it is common in the clothing sector for the same mark to be configured in various ways according to the type of product which it designates. It is also common for a single clothing manufacturer to use sub-brands (signs that derive from a principal mark and which share with it a common dominant element) in order to distinguish its various lines from one another (Fifties, paragraph 49, and BUDMEN, paragraph 57). In the present case the conceptual content of the marks applied for may reinforce the consumer’s perception of them as sub-brands of a mark NL. Even if the consumer were faced with only one of the signs in question, the separate perception of ‘NL’ in bold type, first, and then of the following word, which may evoke the idea of a certain style of clothing, might lead the consumer to identify it as a sub-brand of the mark NL. Moreover, the different written form of the letter combination ‘NL’ in the signs applied for as compared with that of the earlier trade mark NL could be perceived as a particular configuration of that mark. Accordingly, the conclusion of the Board of Appeal that the consumer may perceive the marks applied for as special lines originating from the undertaking which is the proprietor of the earlier trade mark must be upheld".
The IPKat wonders whether the concept of varying configuration of a trade mark is a form of shorthand for "wider protection for the mark as likely to be used than for the mark as registered".

Get your New Look here, here or here
ECJ SNIPPETS ECJ SNIPPETS Reviewed by Jeremy on Sunday, October 10, 2004 Rating: 5


  1. I disagree with the ECJ in arguing that a Mag light has the 'merest trace of distinctive character'. The shape does to me have sufficent distinction to be indicative of source. Its a shape that immediately makes you think of the Mag brand. Maybe that's just me..

  2. In terms of pure fact, I'm inclined to agree with you. I assume that there are many other people out there who are pretty like-minded, which is why the Mag torch shape has been found distinctive in so many applications to register national rights. Presumably Mag will apply again, adducing irrefregable evidence that the shape has acquired distinctiveness through use, and will eventually succeed.

  3. I agree that the maglite shape is now distinctive, but surely they never had a chance of winning based on a priori distinctiveness, and I wonder why they pursued the case so far on the basis of this very weak argument. Distinctiveness through use was their only reasonable prospect of success, and I wonder why they did not go down that road to begin with...
    Darren Smyth

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