On 16 January the Advocate General will give his opinion on a question referred by the Hoge Raad der Nederlanden in Adidas v H & M. The question is rather gabbled (perhaps a poor translation, since it refers to marks which have become distinctive through customary usage). The main thrust seems to be whether there is a need to take the interests of other traders in keeping certain marks free into account when deciding if a mark has acquired sufficient distinctiveness to overcome a descriptiveness objection. This is something that has puzzled the IPKat for a while. If a trade mark needs to be kept free for others, why should this need disappear if the mark has acquired distinctivness?
Our old friend, the trade mark use issue, makes a sneaky reappearance, with the Dutch court asking
‘If the answer to Question 1 is in the affirmative: does it make any difference whether the signs which are referred to therein and which are to be held available are seen by the relevant public as being signs used to distinguish goods or merely to embellish them?’For good measure, the court has also asked whether it makes a difference whether the mark is also devoid of distinctive character, or contains a 'designation' [whatever that means] protected by Art.3(1)(c).
Also, who says that ideas aren’t protected by IP rights? On 16 January, the CFI will be ruling on the validity of the IDEA Community trade mark, currently held by Ikea.