The second of today’s ECJ trade mark judgments – this time the fate of Dyson’s application to register the transparent bin of its vacuum cleaner for vacuum cleaners.

The UK court made a reference based on acquired distinctiveness in relation to functional elements of goods, but the ECJ chose to base its decision on whether the mark was in fact a sign.

The ECJ's decision has left the IPKat in a bit of a spin

*The applied for mark was not a sign, as such it failed to satisfy Art.2 and so there was no need to consider the Art.3 grounds. Instead, it was a mere property of the product.
*What was applied for was abstract and general, since it covered all conceivable shapes of transparent collecting bins.
*Consequently, what was applied for was not visually perceptible. Specific examples of such bins could be seen, but the concept of a bin, which was what the application was for, could not.
*Such non-specific subject matter would give Dyson a competitive advantage by excluding competitors from using any form of transparent collecting bin.

The IPKat says that in basing the decision on Art.2, the ECJ has neatly avoided the problem inherent in Art.3(1)(e) that functionality is limited to shapes and doesn’t appear to include colours, while at the same time protecting the public interest of enabling other traders to compete by using technical solutions that underlies both Art.2 and Art.3(1)(e).
DYSON MARK CONDEMNED BY ECJ DYSON MARK CONDEMNED BY ECJ Reviewed by Unknown on Thursday, January 25, 2007 Rating: 5

1 comment:

  1. Brilliant animation of the cat in the Dyson !

    Disappointed in the ECJ. I reckon they take a look at who has referred the questions and think: "Oh no, it's the UK again'. Far too technical. Can we get out of answering ?"

    So, come on ECJ - what exactly are your thoughts on trade marks arising out of eg patent monopolies ?

    For the benefit of IPKat readership, I will speculate below on what their answer may have been had they got round to the questions.

    "There is no barrier to a patent becoming a trade mark if it performs the relevant function blah, blah, blah. Moreover, trade marks can arise regardless of the onwner's motive, intention blah, blah."


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