If a CTM case gets to the General Court in May 2012, you can be sure that it started a long, long time before then -- and that's what happened here. In September 2007 Nike sought to register as a CTM the word sign JUMPMAN, for ‘clothing, footwear, headgear; including apparel, namely, pants, shorts, shirts, t-shirts, pullovers, sweat shirts, sweat pants, underwear, sports bras, dresses, skirts, sweaters, jackets, socks, caps, hats, visors, sweatbands, gloves, belts, hosiery, arm bands, coats, vests, jerseys, wind-resistant jackets’ (Class 25). Remember: this is the word mark. The corresponding logo (above, right) has been around since the 1980s
you choose me!
Held, by the General Court, that the appeal would be dismissed. In particular:
- The Court agreed that goods such as those listed above in Nike's application were destined for the general public. However, Nike could not assert that the level of this public’s attention would be higher than that of the average consumer in that the garments covered by the mark applied for were what were described somewhat coyly as ‘intimate garments’. Even such garments are everyday consumer goods, in Spain at any rate. In any event, this argument would not wash: the goods covered by Nike’s application included those items of clothing which were not intimate as well as those which were.
- Nike’s submission that the initially average distinctiveness of the word "jump" as a trade mark had become diluted was unconvincing. "Jump’ was not part of the basic vocabulary of the general public in Spain and would thus be perceived as a fanciful term.
- Nike could not both (i) concede that it was likely that the relevant public did not attach a direct and unequivocal meaning to the term ‘jump’ and that, therefore, a conceptual comparison may not be established and (ii) argue that the word ‘jump’ bore for the average Spanish consumer – above all in connection with footwear, a connotation which was associated mentally with the idea of a sudden vertical movement or propulsion from the ground. If the word was not understood in Spain, it could have no meaning for the Spanish.
- If the word ‘jump’ had no meaning to the average Spanish consumer, that word was not made more meaningful through the addition of the word ‘man’. The Board was correct to find that there was a likelihood of confusion, on account of the distinctive character of the word ‘jump’, the identity of the goods concerned and the visual and phonetic similarities between the signs at issue.
|The Kat thought he may|
as well register his own jumping
image as a CTM ...
The IPKat, while deeply impressed with the ingenuity of Nike's submissions, was always confident that they would provide more edification for the readers of this weblog than for that company's shareholders. He adds that he has no problems regarding brand confusion when buying clothing, whether intimate or not: he has delegated the entire task of furnishing his wardrobe to Mrs Kat; she has solved the problems regarding brand confusion by purchasing all his clothing, whether intimate or not, at the local branch of M**** & S******.
Costa Brava here