The IPKat nearly missed a trick when he didn't tell you about one of last month's Court of First Instance (CFI) Community trade mark (CTM) cases that wasn't available in English: Case T-348/02 Quick Restaurants SA v Office for Harmonisation in the Internal Market . But never mind - here it is.
Quick applied to register the figurative mark QUICK as a CTM for goods in Classes 29 to 32 and 42. The application was refused under Art.7(1)(b) and (c) of Regulation 40/94 for all the goods and services designated by the mark on the grounds that (i) the mark was composed exclusively of the term "quick", which designated the quality of the applicant's products and services and (ii) that it was devoid of any distinctive character in respect of those goods and services. Although Quick's appeal to the Board of Appeal was successful for some goods and services, Quick appealed further to the Court of First Instance in respect of the rest.
The CFI dismissed the application. Following the court's own decision in Case T-219/00, Ellos v OHIM Art.7(1)(c) prevented signs or indications from being reserved to a single undertaking if it was necessary for them to be freely used by all. Also, signs that were not distinctive were incapable of carrying out the essential function of a trade mark since they didn't allow the consumer to repeat or avoid the experience of buying those products or services. A mark's "descriptive character" had to be assessed with regard to (i) the products or services which it designated and (ii) the perception of the relevant public. Since "quick" was an English word and the products at issue were intended for general consumption, the relevant public was the average English speaking consumer. For such a consumer the mark QUICK would immediately evoke the idea that those products could be quickly prepared and served. Some products included in the trade mark application (eg "coffee, tea, cocoa") could be provided in conditions which did not imply quick preparation and service: for them, "quick" would not be descriptive. However, since Quick sought registration for each of the categories of products it designated, without any distinction, the Board of Appeal's decision, as based on goods categories in their entirety, had to be upheld.
The IPKat notes that even words which are inherently descriptive or laudatory can still achieve registration as CTMs on the basis that they have acquired distinctive character, as happened in the case of the word IDEAL. He also wonders whether the use of the word QUICK in respect of products which were not produced quickly would be deceptive, hence unregistrable.
Quick Restaurants: not to be confused with QuickDine, DineQuick, Quickfood or Quicksnack
"Slow, slow, quick, quick, slow", as it relates to traffic jams, particle turbulence, internet access and dancing
Quick applied to register the figurative mark QUICK as a CTM for goods in Classes 29 to 32 and 42. The application was refused under Art.7(1)(b) and (c) of Regulation 40/94 for all the goods and services designated by the mark on the grounds that (i) the mark was composed exclusively of the term "quick", which designated the quality of the applicant's products and services and (ii) that it was devoid of any distinctive character in respect of those goods and services. Although Quick's appeal to the Board of Appeal was successful for some goods and services, Quick appealed further to the Court of First Instance in respect of the rest.
The CFI dismissed the application. Following the court's own decision in Case T-219/00, Ellos v OHIM Art.7(1)(c) prevented signs or indications from being reserved to a single undertaking if it was necessary for them to be freely used by all. Also, signs that were not distinctive were incapable of carrying out the essential function of a trade mark since they didn't allow the consumer to repeat or avoid the experience of buying those products or services. A mark's "descriptive character" had to be assessed with regard to (i) the products or services which it designated and (ii) the perception of the relevant public. Since "quick" was an English word and the products at issue were intended for general consumption, the relevant public was the average English speaking consumer. For such a consumer the mark QUICK would immediately evoke the idea that those products could be quickly prepared and served. Some products included in the trade mark application (eg "coffee, tea, cocoa") could be provided in conditions which did not imply quick preparation and service: for them, "quick" would not be descriptive. However, since Quick sought registration for each of the categories of products it designated, without any distinction, the Board of Appeal's decision, as based on goods categories in their entirety, had to be upheld.
The IPKat notes that even words which are inherently descriptive or laudatory can still achieve registration as CTMs on the basis that they have acquired distinctive character, as happened in the case of the word IDEAL. He also wonders whether the use of the word QUICK in respect of products which were not produced quickly would be deceptive, hence unregistrable.
Quick Restaurants: not to be confused with QuickDine, DineQuick, Quickfood or Quicksnack
"Slow, slow, quick, quick, slow", as it relates to traffic jams, particle turbulence, internet access and dancing
"QUICK" MAY NOT BE DESCRIPTIVE OF PRODUCTS PRODUCED SLOWLY, BUT CFI STILL REJECTS APPLICATION
!["QUICK" MAY NOT BE DESCRIPTIVE OF PRODUCTS PRODUCED SLOWLY, BUT CFI STILL REJECTS APPLICATION]()
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Sunday, December 14, 2003
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