CASES IN THE PIPELINE; THE SMELL OF THINGS TO COME

1 Forthcoming attractions

The IPKat is keeping a beady eye on some trade mark decisions that are shortly to emanate from the European Court of Justice in Luxembourg. They include

* Case T-275/03 Focus Magazin Verlag v OHIM - ECI Telecom. On Wednesday 9 November the CFI rules on Focus' appeal against an OHIM Board of Appeal decision, ECI had applied to register Hi-FOCUS as a CTM for goods and services in classes 9 and 38. Focus opposed, citing a likelihood of confusion with its earlier German registrations of the FOCUS word mark in Classes 3, 5, 6, 7, 8, 9, 14, 15, 16, 18, 20, 21, 24, 25, 26, 28, 29, 30, 33, 34, 38, 39, 41 and 42, having dismissed as inadequate its submission of evidence of use of the mark in those classes.

* Case C-206/04 P Mülhens GmbH & Co. KG v Office for Harmonisation in the Internal Market, Zirh International Corp. intervening. This is an appeal from the Court of First Instance (CFI) decision in Case T-355/02 that there was no likelihood of confusion between the Community trade mark (CTM) application for ZIRH and an earlier German registration of a figurative mark containing the word SIR, both marks being for toiletries.

On the same facts, in a decision reported in English in the European Trade Mark Reports, a German court has held that there is a likelihood of confusion. The Advocate General's Opinion is expected next Thursday, 10 November.

As soon as the IPKat hears about these cases, he'll let you know.


2 The smell of things to come

Last week the IPKat blogged the Court of First Instance's dismissal of an appeal against OHIM's refusal to grant a Community trade mark registration for a composite trade mark that included the smell of strawberry. He has now found a somewhat unsavoury sequel to this decision in an article by veteran commentator Naseem Javed (right) in E-Commerce Times on "stinky branding". He writes:

"Initially, EU trademark agencies refused the company's early applications. So, Eden Sarl took it to their regional, second-highest courts. Just recently, these courts, too, rejected their application. [...]

The smell of armpits, dirty laundry and soiled diapers are all now sought-after scents, as companies, pursuing smelly-branding, have all lined up, excited to have exclusive rights to aromas that they can use to bring some odor to their lifeless products ... ".

Er, the IPKat doesn't think so. It seems to him that the attraction of pleasant scents is the fact that they are attractive, not repulsive. In terms of word marks, unattractive and repulsive words do become the subject of trade mark applications, but these tend to be novelty items that have little serious market presence. It is inconceivable that smells that humans spens large amounts of money to eliminate are also going to comprise part of the attractive force that brings new custom or repeat orders for goods or services.