ECJ GIVES KIK THE ORDER OF THE BOOT

The beaches of Alicante were heaving with sighs of relief after the European Court of Justice (ECJ) gave its ruling yesterday in Case T-120/99 (Christina Kik v OHIM) that the Community trade mark (CTM) system was not contrary to EU law even though it may prejudice the interests of speakers of minority European languages. In 1996 Dutch lawyer and trade mark attorney Christina Kik applied to register a CTM for the word KIK. In her application form, which was in Dutch, she also nominated Dutch as the "second language" of the application, in which proceedings might be heard if Dutch were not the appropriate language for them. In 1998 OHIM dismissed the application on the grounds that she had failed to nominate as the second language one of the five languages of the Office (English, French, German, Italian, Spanish). Kik appealed, claiming that OHIM’s decision was unlawful. After the OHIM Board of Appeal dismissed Kik’s appeal she applied to the Court of First Instance (CFI) and claiming that, in applying the CTM Regulation, OHIM had infringed the principle of non-discrimination under Art.12 of the EC Treaty. The CFI dismissed the action, finding that the OHIM could not choose for itself not to apply Art.115(3) of Regulation 40/94 and Kik appealed to the ECJ.

Yesterday the ECJ dismissed Kik’s appeal. The ECJ said the option of using a second language for written communications was an exception to the principle that the language of the original proceedings be used but noted that the CTM Regulation did guarantee use of the language of the original application filed as the language of the basic proceedings. As to the claim that the entire language regime was unlawful, the ECJ ruled that the Regulation sought to achieve the necessary balance between the competing interests of applicants and third parties affected by their applications. Where the parties could not agree on which language to use, it was legitimate to seek an appropriate solution. Even if official languages of the EU were treated differently, limiting OHIM to those that were most widely used in the EU was appropriate and proportionate.

The IPKat notes that, according to Alta Vista’s Babel Fish translation service, “miaow” comes out as “miaow” in all five official languages of OHIM.

KIK in a crowded marketplace: klik here for Kwik Kik, Kik Wear, Kik It computer products, Kik Consulting and Kik-It games
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