In Shield Mark v Kist, the ECJ has decided the weather condition nether which audio merchandise marks tin travel registered. Shield Mark obtained Benelux registrations inwards diverse forms for the tune of the outset nine notes of Beethoven's Fur Elise as well as the audio of a cockerel's crow. When it brought merchandise grade infringement as well as unfair contest claims against Mr Kist, the courtroom flora that in that place was no infringement. Since the Benelux Governments intended to turn down to register sounds equally merchandise marks , they had been invalidly registered. Shield Mark appealed to the Hoge Raad. In answer to the Hoge Raad's reference, the ECJ provided the next guidance on the registrability of sounds equally merchandise marks:
♦ On the upshot of whether audio marks tin travel merchandise marks - Sound marks are capable of beingness merchandise marks nether Article two of Directive 89/104 if they are capable of distinguishing the goods or serviced from ane labor from those of other undertakings as well as if they are beingness capable of beingness represented graphically. They are non past times their nature incapable of distinguishing betwixt the goods of unlike undertakings as well as because they are precluded from registration nether Article two Member US cannot forestall them from registration equally a thing of principle.
♦ On the upshot of whether audio marks tin travel represented graphically - next its Sieckmann, the ECJ reiterated that a merchandise grade tin consist of a sign that is non capable of beingness perceived visually (such equally a audio or an olfactory mark), equally long equally it tin travel represented graphically, peculiarly past times agency of images, lines or characters as well as if its representation is clear, precise, self-contained, easily accessible, intelligible, durable as well as objective. Furthermore, inwards social club to obtain registration of a sound, an applicant must solid reason inwards his application that he is applying for a audio mark.
♦ Whether sure enough ways of representing sounds are acceptable for merchandise grade purposes - While it was for national courts to determine whether the marks submitted inwards each instance met these criteria, the ECJ was prepared to offering guidance on whether representation past times musical notes or written linguistic communication was sufficient. Influenza A virus subtype H5N1 description using written linguistic communication could non travel said to travel insufficient a priori. However, Shield Mark's claim for the outset nine notes of Fur Elise as well as a cockcrow was non sufficiently precise or clear, making it impossible to determine the range of protection sought. This thence did non consider the graphical representation chemical constituent of Article 2. An onomatopoeia is also insufficient because in that place is a disparity betwixt the onomatopoeia as well as the dissonance it purports to represent. Furthermore, an onomatopoeia tin travel perceived differently inwards unlike Member US - something to a greater extent than is needed to brand onomatopoeia registrable. Music notes inwards the course of report A, C, eastward etc are also unacceptable since they are non clear, precise or self-contained equally it is impossible to determine from such a representation lone the pitch as well as duration of the sounds forming the tune claimed. However, a stave divided into bars showing a clef, musical notes as well as rests forms a faithful representation of the sequence of sounds forming the claimed tune as well as equally such meets the graphic representation requirements. Although a stave is non directly intelligible, it may travel easily intelligible, allowing the competent authorise as well as Earth (including other traders) to know exactly the sign whose registration is sought. The ECJ refused to supply guidance on whether a sonogram, a audio recording, a digital recording or a combination of those methods were sufficient since these were hypothetical questions that the referring Netherlands courtroom did non involve to achieve its judgment because Shield Mark had non applied for registrations inwards those forms.
isn't surprised past times the ECJ's determination afterward the court's judgment inwards Sieckmann. He observes though that the door has clearly been left opened upwards to the registration non-visual signs, the representations of which volition require just about interpretation earlier they tin travel understood. However, of all the non-visual signs, sounds are unique inwards having a method of notation that allows people to know exactly what the sign volition travel similar only past times looking at the visual representation of them. He also notes that it seems that alone sounds inwards the course of report of a musical tune volition succeed as well as then he's withdrawing his application for the cat's miaow for intellectual holding data services.
Fur Elise here and here
Cockerels here, here, here, here as well as here
♦ On the upshot of whether audio marks tin travel merchandise marks - Sound marks are capable of beingness merchandise marks nether Article two of Directive 89/104 if they are capable of distinguishing the goods or serviced from ane labor from those of other undertakings as well as if they are beingness capable of beingness represented graphically. They are non past times their nature incapable of distinguishing betwixt the goods of unlike undertakings as well as because they are precluded from registration nether Article two Member US cannot forestall them from registration equally a thing of principle.
♦ On the upshot of whether audio marks tin travel represented graphically - next its Sieckmann, the ECJ reiterated that a merchandise grade tin consist of a sign that is non capable of beingness perceived visually (such equally a audio or an olfactory mark), equally long equally it tin travel represented graphically, peculiarly past times agency of images, lines or characters as well as if its representation is clear, precise, self-contained, easily accessible, intelligible, durable as well as objective. Furthermore, inwards social club to obtain registration of a sound, an applicant must solid reason inwards his application that he is applying for a audio mark.
♦ Whether sure enough ways of representing sounds are acceptable for merchandise grade purposes - While it was for national courts to determine whether the marks submitted inwards each instance met these criteria, the ECJ was prepared to offering guidance on whether representation past times musical notes or written linguistic communication was sufficient. Influenza A virus subtype H5N1 description using written linguistic communication could non travel said to travel insufficient a priori. However, Shield Mark's claim for the outset nine notes of Fur Elise as well as a cockcrow was non sufficiently precise or clear, making it impossible to determine the range of protection sought. This thence did non consider the graphical representation chemical constituent of Article 2. An onomatopoeia is also insufficient because in that place is a disparity betwixt the onomatopoeia as well as the dissonance it purports to represent. Furthermore, an onomatopoeia tin travel perceived differently inwards unlike Member US - something to a greater extent than is needed to brand onomatopoeia registrable. Music notes inwards the course of report A, C, eastward etc are also unacceptable since they are non clear, precise or self-contained equally it is impossible to determine from such a representation lone the pitch as well as duration of the sounds forming the tune claimed. However, a stave divided into bars showing a clef, musical notes as well as rests forms a faithful representation of the sequence of sounds forming the claimed tune as well as equally such meets the graphic representation requirements. Although a stave is non directly intelligible, it may travel easily intelligible, allowing the competent authorise as well as Earth (including other traders) to know exactly the sign whose registration is sought. The ECJ refused to supply guidance on whether a sonogram, a audio recording, a digital recording or a combination of those methods were sufficient since these were hypothetical questions that the referring Netherlands courtroom did non involve to achieve its judgment because Shield Mark had non applied for registrations inwards those forms.
isn't surprised past times the ECJ's determination afterward the court's judgment inwards Sieckmann. He observes though that the door has clearly been left opened upwards to the registration non-visual signs, the representations of which volition require just about interpretation earlier they tin travel understood. However, of all the non-visual signs, sounds are unique inwards having a method of notation that allows people to know exactly what the sign volition travel similar only past times looking at the visual representation of them. He also notes that it seems that alone sounds inwards the course of report of a musical tune volition succeed as well as then he's withdrawing his application for the cat's miaow for intellectual holding data services.
Fur Elise here and here
Cockerels here, here, here, here as well as here
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