If you lot produce got a mutual surname similar Smith or Jones, tin you lot register it equally a merchandise score or (i) is it to survive regarded equally lacking inwards distinctive grapheme nether Article 3(1)(b) of Directive 89/104 or (ii) should your surname survive kept off the merchandise score register then that other people alongside the same cite tin utilization their cite also without threat of merchandise score infringement? The European Court of Justice has right away given its ruling on these questions inwards Case C-404/02 Nichols plc v Registrar of Trade Marks.
What the ECJ says is basically that mutual surnames are to survive examined precisely the same trend equally whatever other prospective merchandise marks. In particular:
* Stricter full general criteria of assessment based on (i) a predetermined release of persons alongside the same name, higher upwardly which that cite may survive regarded equally devoid of distinctive character, (ii) the release of undertakings providing products or services of the type covered past times the application for registration or (iii) the prevalence or otherwise of the utilization of surnames inwards the relevant merchandise cannot survive applied to such merchandise marks.
* The registration of a surname equally a merchandise score cannot survive refused inwards fellowship to ensure that no wages is afforded to the commencement applicant who wants to utilization that name.
* Article 6(1)(a) of Directive 89/104 permits a somebody to brand honest utilization of his cite if it is identical or similar to a registered score . Honest utilization cannot thus survive taken into work organization human relationship for the purposes of the assessment of the distinctive grapheme of an applied-for merchandise mark.
thinks this conclusion is quite correct. The ECJ's conclusion is consistent alongside before decisions inwards which it emphasised that three-dimensional production shapes are also to survive judged past times the same criteria of distinctiveness equally whatever other mark.
Common surnames here, here and here
Uncommon surnames here in addition to here
Descriptive in addition to allusive surnames here
What the ECJ says is basically that mutual surnames are to survive examined precisely the same trend equally whatever other prospective merchandise marks. In particular:
* Stricter full general criteria of assessment based on (i) a predetermined release of persons alongside the same name, higher upwardly which that cite may survive regarded equally devoid of distinctive character, (ii) the release of undertakings providing products or services of the type covered past times the application for registration or (iii) the prevalence or otherwise of the utilization of surnames inwards the relevant merchandise cannot survive applied to such merchandise marks.
* The registration of a surname equally a merchandise score cannot survive refused inwards fellowship to ensure that no wages is afforded to the commencement applicant who wants to utilization that name.
* Article 6(1)(a) of Directive 89/104 permits a somebody to brand honest utilization of his cite if it is identical or similar to a registered score . Honest utilization cannot thus survive taken into work organization human relationship for the purposes of the assessment of the distinctive grapheme of an applied-for merchandise mark.
thinks this conclusion is quite correct. The ECJ's conclusion is consistent alongside before decisions inwards which it emphasised that three-dimensional production shapes are also to survive judged past times the same criteria of distinctiveness equally whatever other mark.
Common surnames here, here and here
Uncommon surnames here in addition to here
Descriptive in addition to allusive surnames here
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