Concurso - Sandra Patricia Ramirez Montes - Holanda - 2016

Montes, Ramírez; Patricia, Sandra

doi:10.15332/dt.inv.2016.02772

Cited by 1 publication

(2 citation statements)

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“…Such a change would positively impact the registration of business décor, which until now EUIPO has usually refused, regardless of the type of sign as filed, that is, figurative, three-dimensional or position. 64 This judgement equally incentivizes the filing of more precise applications, following EUMIR's guidance set out for position signs.…”

Section: Any Chances For Flexible Distinctiveness Standards?mentioning

confidence: 99%

“…The issue of whether business décor ought to escape functionality has already raised doubts. 66 In the author's opinion, there are no reasons to keep service marks away from the scope of functionality bars, especially when third parties' interest in effectively competing on the same market is at stake, which usually requires free access to a set of standardised features. Similarly, aesthetic functionality would likely be the most appropriate prohibition to apply, however the functionality of service marks requires clear legislative intervention.…”

Section: Any Chances For Flexible Distinctiveness Standards?mentioning

confidence: 99%

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The Procrustean fitting of trade marks under the requirements of clear and precise subject‐matter in the EU trade mark law—A case of position marks

Brancusi

2022

World Intellectual Property

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In the European Union Trademark law (EUTM), clear and precise subject‐matter of a trade mark is a prerequisite of proper filing and determines the conditions and scope of protection. Registration rules have evolved together with the meaning of this standard. The paper examines the legal status of position marks, which lacked their own registration specifics within initial EUTM, and thus were usually filed through other categories (figurative, colour, three‐dimensional), and contrasts this practice with the registration scheme of the new law. The analysis looks into the effects of Court of Justice's guidance when retroactively applied to trade marks registered upon earlier law. The exemplary case of a blade of grass inside a bottle is used to map the meaning of ‘unaligned’ description and/or indication vis‐à‐vis the prime relevance of (graphic) representation. The final part explores how identifying the subject‐matter of a position mark has an impact on assessing its distinctiveness, engaging within functionality objections and proving genuine use. The paper advocates for refraining from applying a fixed understanding of the requirement of clear and precise subject‐matter, especially with regard to old registrations, and, a fortiori, to flexible subject‐matter, such as position signs.

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Section: Any Chances For Flexible Distinctiveness Standards?mentioning

confidence: 99%

Section: Any Chances For Flexible Distinctiveness Standards?mentioning

confidence: 99%