OUTBREAK OF CFI CASES: IS IT INFECTIOUS?

A minor rash of Court of First Instance (CFI) decisions on Community trade mark cases broke out yesterday on the European Court of Justice's website. The latest jurisprudence on the Community trade mark consists of:

* Case 281/02 Norma Lebensmittelfilialbetrieb GmbH & Co. KG v OHIM. The applied-for mark was the slogan "Mehr für Ihr Geld" (German for "More for your money") for goods and services in Classes 3, 29 and 30 and 35. The examiner, the Board of Appeal and the CFI all agreed that the mark, at least in respect of Classes 3, 29 and 30, was not distinctive, in that

"the trade mark applied for will be perceived first and foremost by the relevant public as a promotional slogan, because of its meaning, rather than as a trade mark, and that it is therefore devoid of any distinctive character".

The CFI thus found it unnecessary to consider the second ground on which the application was rejected, that it was also descriptive. The IPKat notes that there was no consideration of the issue of deceptiveness, if it should turn out that the consumer was not getting more for his money.

* Case T-317/01 M+M Gesellschaft für Unternehmensberatung und Informationssysteme mbH v OHIM. Here the German applicant sought to register M+M EUROdATA for goods and services in Classes 9, 16, 35, 41 and 42. A French company, Mediametrie SA, opposed, citing earlier French, Irish and international registrations of EURODATA TV for services in Class 35; Mediametrie alleged a likelihood of confusion. The Opposition Division dismissed the opposition but the Board of Appeal, remitting it for further examination, partially annnulled the Opposition Divsion's decision. The applicant appealed to the CFI, which partially annulled the Board's decision on the basis that the Board had failed to take into account the characteristics of the relevant consumer in respect of services in Class 35. This is an error that the Board of Appeal is nowadays generally pretty vigilant to avoid, the IPKat notes.

* Case T-107/02 GE Betz Inc. v OHIM. The applicant sought to register a figurative mark containing the word BIOMATE for microbiocides in Class 1. Opposition proceedings were commenced, following which a dispute arose as to the opponent's failure to furnish evidence in the language of the proceedings. The IPKat warns that this decision should not be read after consuming a heavy, alcohol-rich lunch.

* Case T-186/02 BMI Bertollo Srl v OHIM. The applicant sought to register a mark containing the word DIESELIT for goods in Classes 7 (flat irons), 11 (steam irons, but not machines or parts of machines) and 21 (ironing boards). Diesel opposed, citing earlier Italian registrations of the word mark DIESEL for various apparatus in the same classes. The Opposition Division, the Board of Appeal and the CFI all agreed that, given the high degree of similarity both between the marks and between the goods, there was a likelihood of confusion and upheld the opposition. The IPKat says that this was one decision that was never going to go the other way.