The Court of First Instance of the European Communities ruled today in Joined Cases T-160/02 to 162/02 Naipes Heraclio Fournier v OHIM, France Cartes SAS. Naipes applied to register these three pictures as figurative Community trade marks for playing cards:
It later appeared that these images were among 23 such marks for which Naipes obtained CTM registration. Reversing the decision of the Cancellation Division, the Board of Appeal declared the registrations to be invalid: they were both devoid of distinctive character within the meaning of Article 7(1)(b) of Regulation 40/94 and descriptive in the sense of Article 7(1)(c), in that they would be seen by the average user of such playing cards as representing characteristics of Spanish playing cards.
The Court of First Instance dismissed Naipes' appeal. In the court's own words:
"47 ... the designs of the knight of clubs and the king of swords directly conjure up playing cards for the target public, even if a section of that public is not necessarily acquainted with Spanish playing cards. All persons who have played with any type of cards identify in those drawings the representation of a playing card, given that the king and the knight are frequently used symbols on playing cards. That finding is not invalidated by the fact that the section of the public unacquainted with Spanish playing cards is not necessarily capable of making a direct connection between these drawings and the specific suit and value of each of these two cards.The IPKat, who agrees, is still baffled as to how these wretched marks could ever have been accepted for registration in the first place.
48 In any event, in the mind of the Spanish public, the drawings in question directly designate the precise suit and value of two Spanish playing cards. The potential Spanish consumer of playing cards will perceive each of the signs in question as alluding to a specific card.
49 ... as the applicant points out, although there are numerous different representations enabling cards of a certain suit to be identified, every undertaking manufacturing and marketing Spanish playing cards of necessity uses the symbols of the knight and the club to identify the card having the value 11 of clubs or those of the king and the sword to identify the card having the value 12 of swords. The applicant’s argument that there is no rule or restriction at all as to the form, suit or details characterising the figures in the Spanish pack of cards cannot therefore be accepted.
50 Moreover, ... [Article 7(1)(c)] ... does not ... require that those signs or indications should be the only way of designating such characteristics ... The possibility of designing a knight, a king, a sword or a club slightly differently therefore does not detract from the fact that the marks in question are descriptive of characteristics of playing cards.
51 Accordingly, and in particular for the Spanish public, there is a direct and specific association between the marks in question and playing cards".
More than you ever wanted to know about playing cards here, here and here
Card games here and here