Yesterday the IPKat hazarded a guess as to what the Court of First Instance decision in Case T-71/06 -- involving an application to register a wind energy converter as a Community trade mark -- was all about (see post here). Today, thanks to his scholarly friend Tibor Gold, he can tell you the real story. Says Tibor, summarising the decision:
"1. It is well established by case law (eg Mag Instruments) that shape/3D marks are in principle no different fom other marks, but the average consumer is not used seeing shapes as indicators of origin, ie as TMs.Thanks so much, Tibor.
2. It is also well established by case law that the more a shape TM resembles the actual shape of the goods the more difficult it is to establish its distinctive character under Art 7(1)(b) CTMR (Mag).
3. It is accepted by all both below and at the CFI that the average consumer in this case is a highly attentive professional person. Such a person would perceive the sign as a possible shape of the goods even if it is not the conventional shape. (The nacelle was apparently designed by Sir Norman Foster but that per se was not considered persuasive, nor the other testimonies of distinctiveness). The mere departure from a standard shape does not lead to the conclusion that the average consumer who is reasonably observant etc would perceive the sign/shape as being capable, without having to undertake detailed analysis, of distinguishing this product from products of other undertakings.
4. It is irrelevant that the shape has been registered eg in Germany as a design.
5. Arguments based on alleged violation of various aspects of Art. 73 CTMR and principles of legitimate expectation and loyal cooperation were also rejected".
The next QMIPRI Herchel Smith Seminar takes place this coming Mnday, 19 November, at QMIPRI's lovely new premises at 67-69 Lincoln’s Inn Fields, London WC2A 3JB. The topic is "The Right Side of the Blanket: Music Research, Licensing and the Internet". Speakers are Professor Adrian Sterling (Queen Mary), Professor Martin Kretschmer (Bournemouth) and Professor Katharine Ellis (Institute of Musical Research).
Right: the IPKat is always the right side of the blanket ...
The programme commences at 6pm (for 6.30pm start) and ends with the ever-popular drinks reception.
As usual, the seminar is free and open to the public, but registration is required as places are limited. Please register by email to email@example.com. All seminars have Law Society and General Council of the Bar CPD accreditation (2 points).
Music blanket licences here
Musical blankets here