Applicant gutted as sausage fails to make its mark

Case T-15/05 De Waele v OHIM is the Court of First Instance (CFI)'s offering on Community trade mark law for today. De Waele applied to register as a three-dimensional mark an empty twisted sausage skin (right) for a variety of products. After the usual argy-bargy with the Examiner and the Board of Appeal, De Waele had got the mark registered only for milk products, including cheeses. This didn't satisfy him, probably because you can't hope to sell milk and cheese in an empty sausage skin and hope to get away with it. Anyway, he appealed to the CFI, seeking registration

"as far as it concerns ‘gut for making sausages’ in Class 18 or, at least, in so far as it concerns ‘gut for making sausages intended for professional buyers’".

Below: the three-striped sausage mark, much favoured by adidas

The CFI has stumbled over a few banana skins in its time, but it wasn't going to make any mistake here. Said the CFI, dismissing the appeal:
"25 The applicant complains that the Board of Appeal assessed the distinctiveness of the mark applied for in relation to the perception on the part of end consumers, even though it accepted that gut for making sausages is bought by those in the business.

26 In that respect ... in respect of goods which serve as packaging for other goods, it has been held that, even if, in principle, it is those in the business and not end consumers in general who acquire such goods, they none the less acquire them with a view to subsequent sales of the packaged goods to end consumers and that, accordingly, account must also be taken of the latter’s perception ...

27 The applicant’s argument that he would sell gut only to manufacturers of charcuterie cannot invalidate that analysis. It should be noted that end products which must be packaged adopt the shape of the packaging, so that a three-dimensional mark protecting the shape of the packaging may be used without distinction both as the mark of the packaging and the mark of the end products. Accordingly, if the packaging manufacturer owning the mark sells its goods to several manufacturers of the end product, as the applicant claims to do, that mark can be an indication of origin only in respect of the packaging, and only vis-à-vis manufacturers of the end product. In that case, consumers of the end products, faced with goods of the same shape but not of the same commercial origin, will not be able to establish a link between the shape of the goods and their commercial origin. On the other hand where, as in the cases resulting in the judgments in Brown cigar shape and gold ingot shape and Shape of a white and transparent bottle, cited above, there is only one manufacturer of the end products using the shape in question, that shape will be capable of being used, provided that it is sufficiently distinctive, as a mark of the end product.
28 The use of a mark as a mark in respect of packaging or as a mark in respect of the end products is a marketing choice made by the proprietor of the mark which is liable to be altered after its registration and cannot therefore have any bearing on the assessment of its registrability ...

29 Accordingly, even though the applicant states that he sells gut for making sausages to several manufacturers of charcuterie, it is perfectly possible for him to alter that choice once registration has been obtained by selling his product to only one manufacturer of charcuterie or by manufacturing his own. That would result in the shape registered for gut being used as a mark for charcuterie products packaged by him, without its distinctiveness vis-à-vis consumers of those goods having been examined".

Above, right: a sausage seeking to escape from the sizzling heat of Alicante

Pick the bones out of that, says the IPKat. Merpel adds, presumably the appearance of the 3D mark would depend on what the sausage manufacturers did with it after it left De Waele's hands; that's not what I'd call a trade mark.

Now for some vegetation ...

European Community Plant Variety Protection is a handsome and informative book which has recently been published by IP hot-shots Oxford University Press. Written and edited into impeccably lucid English, this tome is the work of the IPKat's friend Gert Würtenberger together with Bart Kiewiet and Paul van der Kooij, plus Martin Ekvad (whose name appears on the book's cover, in the list of contributors and as having contributed chapters 4 and 5, though his name is not on the OUP website).

According to the publisher's blurb,

"This book is intended as a practical guide to the European Community plant variety protection system under Council Regulation (EC) 2100/94. This system was introduced to enable breeders to protect in Europe new varieties of plants with a tailor-made intellectual property right. The plant breeding industry is an important sector in the European Community with an increasingly competitive atmosphere forcing breeders to protect their products and enforce their IP rights against competitors.

This book provides a systematic approach to the Community plant variety protection system. The authors explain how to obtain plant variety protection and how to enforce rights to that protection. They also consider various interpretations of the provisions of the Regulation as well as the strengths and weaknesses of the system.

The book covers the world's largest system for plant variety protection, and will be the only comprehensive up-to-date resource on Community Plant Variety Rights".
The book is not a light read; it is a very serious account of the law indeed. The IPat was surprised, indeed embarrassed, to discover quite how much plant variety protection law there is, and how sophisticated is the analysis of the issue raised that cannot conveniently be determined by general principles of intellectual property law. He congratulates all the contributors and the publishers for the effort they have expended and for the very high quality of the resulting work.

Bibliodata. Price £95 (hardback); ISBN-10: 0-19-928616-7, ISBN-13: 978-0-19-928616-4; Publication date 27 April 2006. xxxiv + 311 pages. Rupture factor: not heavy, though the book has some sharp corners ...

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