For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

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Monday, 10 June 2013

Little time to talk about Hauck

Some curious questions are heading towards the Court of Justice of the European Union these days.  The United Kingdom Intellectual Property Office has emailed interested parties -- including this Kat -- to say that it has received notification of a new case referred by Hoge Raad der Nederlanden (Netherlands), to the CJEU: this is Case C-205/13 Hauck. This case concerns the interpretation of Article 3(1)(e) of Directive 2008/95 relating to trade marks, relating specifically to shape trade marks and what the IPO describes as "copyright in a high chair for children" [though the keen reader will be hard-pressed to find any mention of the word 'copyright' in the questions referred].

The following questions have been referred:
1 (a) Does the ground for refusal or invalidity in Article 3(1)(e)(i) of ... Directive 2008/95, namely that shape trade marks may not consist exclusively of a shape which results from the nature of the goods themselves, refer to a shape which is indispensable to the function of the goods, or can it also refer to the presence of one or more substantial functional characteristics of goods which consumers may possibly look for in the goods of competitors?

(b) If neither of those alternatives is correct, how should the provision then be interpreted?

2 (a) Does the ground for refusal or invalidity in Article 3(1)(e)(iii) of ... Directive 2008/95 namely, that (shape) trade marks may not consist exclusively of a shape which gives substantial value to the goods, refer to the motive (or motives) underlying the relevant public's decision to purchase? [What a strange question, says Merpel. The Directive doesn't exactly burst with references to the relevance of the relevant public's motive for making a purchase. There's no way the CJEU can say here without being accused of the most egregious law-making, surely]

(b) Does a 'shape which gives substantial value to the goods' within the meaning of the aforementioned provision exist only if that shape must be considered to constitute the main or predominant value in comparison with other values (such as, in the case of high chairs for children, safety, comfort and reliability) or can it also exist if, in addition to that value, other values of the goods exist which are also to be considered substantial?

(c) For the purpose of answering Questions 2(a) and 2(b), is the opinion of the majority of the relevant public decisive [Says Merpel: the answer to this question is "No, no, a thousand times no!" It has only been asked in order to wind up the CJEU], or may the court rule that the opinion of a portion of the public is sufficient in order to take the view that the value concerned is 'substantial' within the meaning of the aforementioned provision?

(d) If the latter option provides the answer to Question 2(c), what requirement should be imposed as to the size of the relevant portion of the public?

3. Should Article 3(1) of ... Directive 2008/95 be interpreted as meaning that the ground for exclusion referred to in subparagraph (e) of that article also exists if the shape trade mark consists of a sign to which the content of sub-subparagraph (i) of subparagraph (e) applies, and which, for the rest, satisfies the contents of sub-subparagraph (iii) of subparagraph (e)?
If you would like to comment on this case please email policy@ipo.gov.uk by 14 June 2013. The IPKat's thoughts on this breathlessly short time allowed for comment are too well known to repeat here.  Merpel says, we can discuss the answers if we run out of anything more interesting to talk about at ~Wednesday's party.

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