|HSK 13 in all its glory |
(registered as a pure colour mark
-- without any word or device elements)
After staring at the the Cura website for ages yesterday, when the Oberbank decision was originally meant to be published, this Kat is delighted to finally be able to see it this morning. The related Santander decision has not yet been published but this Kat assumes that the court's answers to the questions posed by the German Federal Patent Court should be the same.
Unfortunately, the Oberbank case is not yet -- at the time of writing this post -- published in English. Let's hope it will be in due course since this is an interesting case.
|Also using red|
1. Does Article 3(1) and (3) of the directive preclude an interpretation of national law according to which, for an abstract colour mark (in this case: red HKS 13) which is claimed for services in the financial affairs sector, a consumer survey must indicate an adjusted degree of association of at least 70% in order to form a basis for the assumption that the trade mark has acquired a distinctive character following the use which has been made of it?
3. In the event that, under the abovementioned conditions, the time at which the application was filed is also relevant:
Is the trade mark to be declared invalid if it is not clarified, and can no longer be clarified, whether it had acquired a distinctive character, following the use made of it, at the time when the application was filed? Or does the declaration of invalidity require the applicant seeking that declaration to prove that the trade mark had not acquired a distinctive character, following the use made of it, at the time when the application was filed?
The CJEU has answered these questions as follows:
In German (the language of the proceedings)