Anna Carboni of Wilberforce Chambers has kindly provided the IPKat alongside a re-create of the OHIM Cancellation Division’s determination invalidating Lego's registration of the shape of its Lego bricks equally a Community merchandise mark. In doing so, the Cancellation Division applied the ECJ’s Philips 5 Remington decision, making a release of new and/or interesting points, including:
* “There is no dominion inward Community merchandise score police pull that bars anything that has been patented or could convey been patented from CTM registration. Rather, the full general regulation is that 1 too the same production or detail tin live on protected past times diverse industrial belongings rights, provided that the weather condition for each of those rights are fulfilled individuallyâ€Â.
* The Cancellation Division separate the seat down for the refusal of registration nether Art.7(e)(ii) of Regulation 40/94 into two questions: (i) is the shape of the goods necessary to obtain a result? (ii) is the outcome that is obtained of a technical nature? The term “technical†for these purposes must live on interpreted inward the same vogue equally it is interpreted inward patent law, which cuts downward on the endangerment of an overlap betwixt patent too merchandise score protection.
* Regarding the commencement interrogation the Cancellation Division stated “The interrogation is non whether the pattern of the detail is functional, only whether the component subdivision of an detail is truly performed past times the shape [i.e. the shape for which registration is applied, rather than past times another characteristic of the production inward question]â€Â.
* Where a 3-D shape contains elements that are precluded from registration nether Art.7(1)(e)(iii), such objections tin alone live on overcome if the score comprises other elements that are distinctive on their own.
* Acquired distinctiveness cannot overcome an objection nether Art.7(1)(e) since Earth involvement protected past times that article, which is to enable competitors to access the same technical solution has goose egg to alongside distinctiveness. ( is somewhat puzzled past times this point, because the request to choke along certainly marks gratuitous for other traders is said to live on what is protected past times Art.7(1)(c) (descriptiveness) nonetheless at that spot has been no proffer that objections nether that article cannot live on overcome past times acquired distinctiveness).
notes that it is truly rather rare for Philips 5 Remington to live on applied since many companies prefer to fence that functional shapes lack distinctiveness. The argue for this is frequently that proving that a score is unregistrable nether Art.7(1)(e) is tricky too technical, equally this illustration demonstrates.
Naughty Lego here
Serious Lego here, here and here
Magical Lego here
Constructive Lego here and here
Lego that says “Ni†here
says “You’re having also much fun looking at Lego sites, Ilanahâ€Â.
* “There is no dominion inward Community merchandise score police pull that bars anything that has been patented or could convey been patented from CTM registration. Rather, the full general regulation is that 1 too the same production or detail tin live on protected past times diverse industrial belongings rights, provided that the weather condition for each of those rights are fulfilled individuallyâ€Â.
* The Cancellation Division separate the seat down for the refusal of registration nether Art.7(e)(ii) of Regulation 40/94 into two questions: (i) is the shape of the goods necessary to obtain a result? (ii) is the outcome that is obtained of a technical nature? The term “technical†for these purposes must live on interpreted inward the same vogue equally it is interpreted inward patent law, which cuts downward on the endangerment of an overlap betwixt patent too merchandise score protection.
* Regarding the commencement interrogation the Cancellation Division stated “The interrogation is non whether the pattern of the detail is functional, only whether the component subdivision of an detail is truly performed past times the shape [i.e. the shape for which registration is applied, rather than past times another characteristic of the production inward question]â€Â.
* Where a 3-D shape contains elements that are precluded from registration nether Art.7(1)(e)(iii), such objections tin alone live on overcome if the score comprises other elements that are distinctive on their own.
* Acquired distinctiveness cannot overcome an objection nether Art.7(1)(e) since Earth involvement protected past times that article, which is to enable competitors to access the same technical solution has goose egg to alongside distinctiveness. ( is somewhat puzzled past times this point, because the request to choke along certainly marks gratuitous for other traders is said to live on what is protected past times Art.7(1)(c) (descriptiveness) nonetheless at that spot has been no proffer that objections nether that article cannot live on overcome past times acquired distinctiveness).
notes that it is truly rather rare for Philips 5 Remington to live on applied since many companies prefer to fence that functional shapes lack distinctiveness. The argue for this is frequently that proving that a score is unregistrable nether Art.7(1)(e) is tricky too technical, equally this illustration demonstrates.
Naughty Lego here
Serious Lego here, here and here
Magical Lego here
Constructive Lego here and here
Lego that says “Ni†here
says “You’re having also much fun looking at Lego sites, Ilanahâ€Â.
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