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Thursday, 2 July 2015

Uninsured -- and unregistrable: the OAEE 'victims' mark in Greece

The OAEE (initials for Organismos Asfalisis Eleftheron Epaggelmation) or, roughly, Freelancers’ Social Security Organization is (what else) the Greek State’s social security organization for “freelancers” (this includes lawyers in Greece). Exercising its wisdom (at least in trade mark terms), the OAEE filed (and registered) its logo (below right) as a trade mark in Greece in classes 16, 35, 38 and 44 back in 2009.  

Within the context of the easy breezy situation in Greece, a large number of beneficiaries of OAEE have been unable to pay social security contributions over the past years and have been exposed to the possibility of not receiving OAEE’s health benefits and services and, most probably, have also needed advice as to how to handle their situation legally. This has apparently led to the formation of collectives comprising such beneficiaries in an effort to more robustly pursue their interests.

On February such a group named (again a rough translation) “Panhellenic Group of OAEE un-insured” filed the mark below in Class 45 designating provision of information on legal issues and free legal services. 

This application allowed the Greek TM Office to issue one of its few (if not the first ever – after the 2012 TM law revision) ex officio refusals of a trade mark over famous trade mark infringement.The application was also rejected as misleading and as infringing earlier non-registered rights, namely the indication OAEE as a distinctive title. Unfortunately, the reasoning of the decision is a potpourri of the relevant grounds of refusal doing injustice to all of them. The competent Examiner, not citing the earlier OAEE registered trade mark (!), ruled that it has become a famous trade mark in Greece. Although not expressed, one can infer that the Examiner thought that the very function of OAEE suffices to render the relevant trade mark a famous one.

The decision further reads that due to the dominance of the OAEE letters in both marks, in spite of the difference in the way they are styled and the additional word indications of the later mark, the two marks are similar. This similarity leads, under the decision, to the likelihood that the public would consider there being some form of relationship between the owners of the later mark and the Greek State. This risk of ‘association’ is not categorized by the decision in any of the grounds of refusal set forth and sort of leaves us wondering. For sure, it cannot come under famous trade mark infringement, although it could fall within the ambit of the provisions on misleading marks and marks infringing earlier non-registered rights, as OAEE does not own a trade mark in Class 45.   

An interesting angle is that the right part of the later mark includes words of criticism such as "Victims of OAEE", which could give rise to freedom of expression concerns and a defence over the non-existence of any likelihood of association. Unfortunately, the applicant did not respond to the procedural invitation to submit its observations, so we may never find out if this would make an interesting case. The applicant may still file a recourse action before the Trade Marks Administrative Committee. 

This Kat regularly complains (usually in front of a mirror) of the quality of Greek TM Office decisions, because he feels it is not a very hard task. Still, he would accept the accusation that he nags a lot. The decision in Greek is here.

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