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Tuesday, 27 September 2005

CARGO MARK SUNK BY CFI; INTA MEMBERSHIP DIRECTORY IS MISSING SOMETHING


1 CARGO PARTNER gets that sinking feeling

In Case T-123/04 Cargo Partner AG v OHIM, decided today, the Court of First Instance (CFI) dismissed Cargo Partner's appeal against an OHIM Board of Appeal's dismissal of an appeal against the examiner's refusal to grant registration of the word mark CARGO PARTNER as a Community trade mark for services in Class 39 (transport; packaging and storage of goods; travel arrangement). The stumbling-block that prevented registration was the considered opinion of everyone except the applicant that the words lacked distinctive character. As the CFI explained the Board's decision,

"in English, the terms ‘cargo’ and ‘partner’ were devoid of any distinctive character in relation to the list of services at issue, consisting in transport services and related services, such as packaging and storage of goods. .. [T]he English expression ‘cargo partner’ could be translated into German by 'Frachtpartner’ or ‘Transportpartner’ and ... the formation of that expression was in conformity with the grammatical rules of the English language".
Having dismissed OHIM's objections as to the admissibility of the appeal, the CFI then rejected the applicant's arguments that the mark was distinctive:
"52 The word ‘partner’ is used in various contexts, including the supply of services, to describe relationships of association or partnership by suggesting positive connotations of reliability and continuity (Case T-270/02 MLP Finanzdienstleistungen v OHIM (bestpartner)... paragraph 23)

53 The term ‘cargo’ indicates that the services at issue are freight services and the packaging and storage of goods.

54 Therefore, it must be concluded that the terms ‘cargo’ and ‘partner’ are generic words which are accordingly not capable of distinguishing the applicant’s services from those of other undertakings.

55 As regards trade marks composed of words, such as the mark at issue here, the absence of distinctive character must be determined not only in relation to each word taken separately but also in relation to the whole which they form. Any perceptible difference between the terms of a word sign submitted for registration and the terms used in the common parlance of the relevant class of consumers to designate the goods or services or their essential characteristics is apt to confer distinctive character on that sign enabling it to be registered as a trade mark (BABY-DRY, ... paragraph 40).

56 In this case there are no elements which indicate that in English the expression ‘cargo partner’ has, in common parlance, a meaning other than that of presenting the partner offering services of transport, packaging and storage of goods. In relation to the terms which compose it, the sign CARGO PARTNER does not present any additional characteristic capable of making the sign as a whole appropriate to distinguish the services of the applicant from those of other undertakings in the mind of the relevant public.

57 It is the case that the applicant is established in Austria, a German-speaking country. However, since registration may be refused once there are grounds for refusal in part of the Community, it is clear that, where it is established that there is a ground for refusal in the English-speaking part of the Community, the existence of such a ground in other parts of the Community does not affect the outcome of the present case (bestpartner, ... paragraph 21).

58 Moreover, it must be stated for the sake of completeness that the two words ‘cargo’ and ‘partner’ can also be used in German with substantially the same meaning as in English.

59 It follows that the sign CARGO PARTNER is, from the point of view of the relevant public, devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation 40/94 as far as services of transport and packaging and storage of goods are concerned".
The IPKat has some sympathy for the applicant. While the mark is not a terribly elegant or exciting one, it strikes him as an Anglophone Kat that the words, taken globally (a word that does not appear in this decision), jar somewhat because they are not a normal idiom. Expressions in English that contain 'partner' (bridge partner, tennis partner, sleeping partner, senior partner, partner in crime) tend to be well-worn usages that have a meaning of their own. But to tack 'partner' on to other words (eg. pencil partner, sausage partner, newspaper partner, flower partner) would sound distinctly odd and might arguably therefore be distinctive.


2 Joy turns to misery...

The IPKat was so happy when he received his lovely big (389 pages) INTA (International Trademark Association) Membership Directory 2005-2006 today. But his joy was diminished somewhat by the fact that, while full and associate members have all their contact details listed, and even INTA staff members have their telephone numbers and email addresses provided, Professor and Student members are just unceremoniously listed alphabetically by surname and again by institution, without listing any contact details.

This is a silly sort of discrimination. It means that academics, who pay very little for their membership, can easily contact everyone else in the Directory, while people who pay the full rate for their membership have to resort to such trusty tricks as playing around with Google (or asking their secretaries to do it for them) if - as often happens - they need to contact a trade mark academic.

19 comments:

Guy said...

"cargo partner" "baby dry" what is the difference in distinctiveness?

Jeremy said...

You can that BABY DRY is an unusual syntactical juxtaposition while CARGO PARTNER is merely a clumsy and non-idiomatic expression, but I'm not convinced that that difference should mean that the one is registrable and the other is not. That's why I have some sympathy with the appellant.

Anonymous said...

It would seem to me that it would be quite normal in advertising literature to use the phrase "company X, your cargo partner".

MikeC said...

likewise - 'nappies can keep your BABY DRY'

Anonymous said...

I think these comments miss the point. I have no idea what a cargo partner is. Is it someone who is a partner in selecting the cargo, in parcelling it up for delivery, in transporting it to and from a particular location, in sharing the profit on its resale, or what? Unless you teach your addressee what 'cargo partner' means, it strikes me as being meaningless - particularly since none of the activities performed by the CTM applicant appear to be carried out in partnership with anyone, any more than NatWest is my 'banking partner' because I happen to bank there.

[Posted by Jeremy, anonymously, because none of his passwords seem to work today]

Anonymous said...

I guess my comment above was adopting the US vernacular:

See, for example,

http://www.flymsy.com/cargo.htm

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