Tag: trademark

What happens when copyright protection expires? Trade mark/copyright intersection and George Orwell’s ‘Animal farm’ and ‘1984’

IPlens1 Comment

The 1st of January of each calendar year marks not only the days full of new years’ hope, resolutions, and promises, but also the public domain day. 1 January 2021, a moment full of hope with the anti-COVID vaccine rolling out, is no different for copyright law purposes. On the 1st of January, many copyright protected works fell in the public domain.

This year marked the falling into the public domain of the works of George Orwell. Born in 1903, under the real name of Eric Arthur Blair, he has authored masterpieces such as ‘1984’ and ‘Animal Farm’, which in recent years have become extremely topical and relevant. In early 2017, the sales of ‘1984’ went so high up that the book became a bestseller once again. Some have suggested this is a direct response to the US Presidency at the time in the face of Donald Trump.

Orwell passed away in 1950, which means that, following the life of the author plus seventy years rule as per Article 1 of the Term Directive, copyright in Orwell’s works expired on 1 January 2021. Despite this, in the last several years an interesting trend has prominently emerged. Once copyright in famous works, such as those at issue, has expired, the body managing the IPRs of the author has often sought to extend the IP protection in the titles by resorting to trade mark applications. At the EUIPO, this has been successful for ‘Le journal d’Anne Frank’ (31/08/2015, R 2401/2014-4, Le journal d’Anne Frank), but not for ‘The Jungle Book’ (18/03/2015, R 118/2014-1, THE JUNGLE BOOK) nor ‘Pinocchio’ (25/02/2015, R 1856/2013-2, PINOCCHIO).

This is the path that the ‘GEORGE ORWELL’, ‘ANIMAL FARM’ and ‘1984’ signs are now following. The question of their registrability as trade marks is currently pending before the EUIPO’s Grand Board of Appeal. This post will only focus on the literary work titles – ‘ANIMAL FARM’ and ‘1984’, as the trade mark protection of famous authors’ personal names is a minefield of its own, deserving a separate post.

The first instance refusal

In March 2018, the Estate of the Late Sonia Brownell Orwell sought to register ‘ANIMAL FARM’ and ‘1984’ as EU trade marks for various goods and services among which books, publications, digital media, recordings, games, board games, toys, as well as entertainment, cultural activities and educations services. The Estate of the Late Sonia Brownell Orwell manages the IPRs of George Orwell and is named after his second and late wife – Sonia Mary Brownwell.

The first instance refused the registration of the signs as each of these was considered a “famous title of an artistic work” and consequently “perceived by the public as such title and not as a mark indicating the origin of the goods and services at hand”. The grounds were Article 7(1)(b) and 7(2) EUTMR – lack of distinctive character.

The Boards of Appeal

The Estate was not satisfied with this result and filed an appeal. Having dealt with some preliminary issues relating to the potential link of ‘ANIMAL FARM’ to board games simulating a farm life, the Board turned to the thorny issue of registering titles of literary works as trade marks. The Board points out that while this is not the very first case of its kind, the practice in the Office and the Board of Appeal has been diverging. Some applications consisting of titles of books or of a well-known character are registered as marks since they may, even if they are well-known, still be perceived by the public also as an indicator of source for printed matter or education services. This was the case with ‘Le journal d’Anne Frank’. Other times, a famous title has been seen as information of the content or the subject matter of the goods and services being considered as non-distinctive and descriptive in the meaning of Article 7(1)(b) and (c) EUTMR. This was the case for ‘THE JUNGLE BOOK’, ‘PINOCCHIO’ and ‘WINNETOU’. The EUIPO guidelines on this matter are not entirely clear. With that mind, on 20 June 2020, the case has been referred to the Grand Board of Appeal at the EUIPO. Pursuant to Article 37(1) of Delegated Regulation 2017/1430, the Board can refer a case to the Grand Board if it observes that the Boards of Appeal have issued diverging decisions on a point of law which is liable to affect the outcome of the case. This seems to be precisely the situation here. The Grand Board has not yet taken its decision.

Comment

The EUIPO’s Grand Board is a bit like the CJEU’s Grand Chamber – cases with particular importance where no harmonised practice exists are referred to it (Article 60, Rules of Procedure, CJEU). The Grand Board has one specific feature which the other five ‘traditional’ Boards lack. Interested parties can submit written observations, the otherwise known ‘amicus curiae’ briefs (Article 23, Rules of Procedure of the EUIPO Boards of Appeal). In fact, in this specific instance, INTA has already expressed its position in support of the registration of the titles.

It must be observed here that when the trade marks were filed, back in March 2018, ‘Animal farm’ and ‘1984’ were still within copyright protection (but not for long). Indeed, the Estate underlines in one of its statements from July 2019 that “George Orwell’s work 1984 is still subject to copyright protection. The EUIPO Work Manual (ie, the EUIPO guidelines) specifically states that where copyright is still running there is a presumption of good faith and the mark should be registered”. While this is perfectly true, what is also important to mention here is that trade mark registration does not take place overnight, especially when it comes to controversial issues such as the question of registering book titles as trade marks.

The topic of extending the IP life of works in which copyright has expired has seen several other examples and often brings to the edge of their seat prominent IP professors, as well as trade mark examiners and Board members. Furthermore, several years ago, the EFTA court considered the registrability as trade marks of many visual works and sculptures of the Norwegian sculptor Gustav Vigeland (see the author’s photo below).

‘Angry Boy’ by Gustav Vigeland, Vigeland park, Oslo, photo by Alina Trapova

At stake here was a potential trade mark protection for an artistic work in which copyright had expired. One of these is the famous ‘Angry Boy’ sculpture shown here. The Municipality of the city of Oslo had sought trade mark registration of approximately 90 of Vigeland’s works. The applications were rejected. The grounds included not only the well-known descriptiveness and non-distinctiveness, but also an additional objection on the grounds of public policy and morality. Eventually, the case went all the way up to the EFTA court. The final decision concludes that “it may be contrary to public policy in certain circumstances, to proceed to register a trade mark in respect of a well-known copyright work of art, where the copyright protection in that work has expired or is about to expire. The status of that well known work of art including the cultural status in the perception of the general public for that work of art may be taken into account”. This approach does make good sense as it focuses on the specific peculiarities of copyright law (e.g., different to trade mark law, copyright protection cannot be renewed), but it also considers re-appropriation of cultural expression as aggressive techniques of artificially prolonging IP protection – something, Justice Scalia at US Supreme Court has labelled as “mutant copyright” in Dastar v. Twentieth Century Fox in 2003.

In the EU, the public policy/morality ground has been traditionally relied on to object to obscene expression. The focus has been on the whether the sign offends, thus tying morality to public policy (See also another Grand Board decision on public policy and morality: 30/01/2019, R958/2017-G, ‘BREXIT’). A notable example is the attempt to register the ‘Mona Lisa’ painting as a trade mark in Germany. The sign was eventually not registered, but not due to clash with public policy and potential artificial extension of copyright through the backdoor of trade marks, but because the sign lacked distinctiveness. Consequently, the EU understands the public policy and morality ground in a rather narrow and limited manner, namely linked only to offensive use.

Overlap of IPRs happens all the time: a patent turns into a copyright claim (C-310/17 – Levola Hengelo and C-833/18 – Brompton Bicycle), whereas design and copyright may be able to co-habit in the same item (C-683/17 – Cofemel). All would agree that an unequivocal law prohibiting overlaps of IPRs is not desirable from a policy perspective. Yet, you may feel somehow cheated when your favourite novel is finally in the public domain due to copyright expiring (which, by the way, already lasts the life of the author plus seventy years), but protection has been “revived” through a trade mark. Trade marks initially last for 10 years, but they can be renewed and thus protection lasts potentially forever (what a revival!). Therefore, there may be some very strong policy reasons against this specific type of IP overlap and extension of IPRs. Like the European Copyright Society has said in relation to Vigeland, “the registration of signs of cultural significance for products or services that are directly related to the cultural domain may seriously impede the free use of works which ought to be in the public domain. For example, the registration of the title of a book for the class of products including books, theatre plays and films, would render meaningless the freedom to use public domain works in new forms of exploitation”. To that end, Martin Senftleben’s new book turns to this tragic clash between culture and commerce. He vocally criticises the “corrosive effect of indefinitely renewable trademark rights” with regard to cultural creativity.

As for ‘Animal farm’ and ‘1984’, the EUIPO’s first instance did not go down the public policy grounds road. This is unfortunate as lack of distinctiveness for well-known titles such as ‘Animal Farm’ and ‘1984’ is difficult to articulate as the Board of Appeal itself underlines – the Office’s guidelines are confusing (some titles have been protected and others not). Besides, lack of inherent distinctiveness can be saved by virtue of acquired distinctiveness (something the Estate of the Late Sonia Brownell Orwell has explicitly mentioned they will be able to prove, should they need to). Considering that the rightholder here would be the Estate of the Orwell family, proving acquired distinctiveness of the titles for the requested goods and services would not be particularly difficult. On that note, a rejection on the ground of public policy/morality can never be remedied through acquired distinctiveness. Thus, it would perhaps have been more suitable to rely on public policy and establish that artificially extending the IP life of these cultural works is not desirable.

Well, the jury is out. One thing is for sure – the discussion at the Grand Board will be heated.

Alina Trapova

Can I order a Big Mac at Burger King? Some thoughts on trademark non-use and well-known facts.

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This past January, the revocation of McDonald’s “BIG MAC” word EU trade mark for non-use was widely reported, both among IP aficionados (here, here, here and here) and in the media (here, here and here). The EUIPO decision (Cancellation No 14 788 C) can be read here.

A few days later, McDonald’s arch-rival Burger King temporarily renamed the sandwiches on the menu of its Swedish operation “Not Big Mac’s” (see the article on The Guardian, here). The opportunity for a poignant joke was evidently too juicy to be missed (it would appear that the video of Burger King’s Swedish stunt is not available on YouTube any longer, but you can still see it here).

big mac

Unsurprisingly, McDonald’s has recently filed an appeal against the EUIPO Cancellation Division’s decision (see here).

Waiting to see what the Boards of Appeal will eventually decide, the “BIG MAC” decision offers an interesting chance to discuss the role of evidence and of “well-known facts” in the assessment of (non-)use and reputation of trade marks in the EU.

The EUIPO decision

McDonald’s filed the “BIG MAC” word EU trade mark (No. 62638) for goods and services in classes 29, 30 and 42, which included “meat sandwiches“.

Supermac’s, an Irish burger chain, brought an application under Article 58(1)(a) of the EUTMR, requesting the revocation of “BIG MAC” in its entirety, arguing that the mark was not put to genuine use during a continuous period of five years in the EU. The application for revocation followed McDonald’s own opposition against an EU trade mark application for “SUPERMAC’S”.

In reply, McDonald’s provided the following evidence of genuine use:

  • 3 affidavits signed by McDonald’s representatives claiming significant sales of “Big Mac” sandwiches in EU Member States;
  • brochures and printouts of advertising posters, packaging and menus showing “Big Mac” sandwiches;
  • printouts from McDonald’s official websites for many (18) EU Member States, depicting, among others, “Big Mac” sandwiches; and
  • a printout from the English version of Wikipedia, providing information, nutritional values and history on the “Big Mac” sandwich.

Supermac’s argued that the evidence of use submitted by McDonald’s did not prove that the “BIG MAC” mark was put to genuine use “for anything other than sandwiches“, thus allowing that use for sandwiches would be proved.

However, the Cancellation Division found that the evidence submitted was insufficient to establish genuine use of the trade mark for all products and services. In particular, the Cancellation Division noted that:

  • ex parte affidavits, although explicitly allowed as means of evidence before the EUIPO, are “generally given less weight than independent evidence“;
  • practically all evidence submitted originated from the EUTM proprietor itself;
  • the mere presence of a trade mark on a website is, of itself, insufficient to prove genuine use “unless it shows also the place, time and extent of use or unless this information is otherwise provided“;
  • in this regard, the EUTM proprietor could have provided records of internet traffic, hits, or online orders; however, the printouts submitted carried “no information of a single order being placed“;
  • Wikipedia entries cannot be considered a reliable source of information, as they can be amended by users and may be relevant only if supported by other pieces of evidence; and
  • a declaration by the applicant itself concluding that the evidence submitted was sufficient to prove use of the trade mark in relation to some of the goods (i.e. sandwiches) could not have any effect on the Office’s findings.

On these grounds, the Cancellation Division revoked the “BIG MAC” trade mark in its entirety (including burgers).

A bitter pill (or “bite” as Italians would say) for the trade mark proprietor?

Following the publication of the decision, many comments highlighted how, although ostensibly strict, the Cancellation Division provided helpful guidance to trade mark proprietors on the kind of evidence that would be needed to show genuine use (here, here, here and here).

In the context of opposition or cancellation proceedings, it is quite common to rely, among others, on affidavits and printouts from company websites and online sources (such as Wikipedia) as evidence of use and reputation. However, the “Big Mac” decision suggests that this may be not enough.

It is most likely that McDonald’s will now try to submit additional evidence before the Board of Appeal, along the lines suggested in the cancellation decision. According to Art. 27 of the EUTMDR, this could be allowed since: “the Board of Appeal may accept facts or evidence submitted for the first time before it” provided that “they are, on the face of it, likely to be relevant for the outcome of the case; and […] they are merely supplementing relevant facts and evidence which had already been submitted in due time“.

In any case, leaving aside the inherent limits of the evidence submitted by the trade mark proprietor, the outcome of the “BIG MAC” decision seems somewhat counter-intuitive.

After all, Big Mac is one of (if not “the”) signature sandwiches of the largest restaurant chain in the world, and it has been sold continuously for the past fifty years (WARNING: these are Wikipedia facts!). Big Mac is such a globally wide-spread product that, in the late 80’s, The Economist developed the “Big Mac index” using the different local prices of the sandwich to measure buying power and currency misalignments across the world. The “Big Mac index” has been used and updated for more than 30 years (for more Burgernomics, see here).

big mac index

One may thus wonder: how can such a “famous” trade mark be legitimately revoked because of insufficient evidence of genuine use, at least in relation to some of the goods and services (notably: hamburger sandwiches!)?

Perhaps, the doctrine of “well-known facts” (in Italian, the so-called “fatti notori“) could (or should) have played a bigger role in the reasoning of the Cancellation Division. In fact, the CJEU case law on trade marks suggests that well-known facts can be taken into account when assessing elements such as reputation, likelihood of confusion and distinctiveness.

For instance, in the Picasso/Picaro case, the General Court argued that “the restriction of the factual basis of the examination by the Board of Appeal does not preclude it from taking into consideration, in addition to the facts expressly put forward by the parties to the opposition proceedings, facts which are well known, that is, which are likely to be known by anyone or which may be learnt from generally accessible sources. […] Article 74(1) of Regulation No 40/94 cannot have the purpose of compelling the opposition division or Board of Appeal consciously to adopt a decision on the basis of factual hypotheses which are manifestly incomplete or contrary to reality. Nor is it intended to require the parties to opposition proceedings to put forward before OHIM every well-known fact which might possibly be relevant to the decision to be adopted” (T-185/02, 22 June 2004, Claude Ruiz-Picasso and Others/OHIM; see also T-623/11, 9 April 2014, Pico Food GmbH/Bogumił Sobieraj, § 19).

Along the same lines, the General Court more recently allowed that “where the Board of Appeal finds that the mark applied for is not intrinsically distinctive, it may base its analysis on well-known facts, namely facts resulting from the generally acquired practical experience of marketing products of wide consumption, which facts are likely to be known to any person” (T-618/14, 29 June 2015, Grupo Bimbo, SAB de CV/OHIM, free translation from Spanish).

In Italy, this principle is enshrined in Art. 115(2) of the Code of Civil Procedure, which provides that “the judge may, without the need for proof, base its decision on facts which are part of the common knowledge“.

And, when considering the distinctiveness of Apple’s device trademark in the context of opposition proceedings, the same Italian Patent and Trademark Office (“IPTO”) argued that “although on the basis of the evidence on file it is not possible to assess the percentage of the relevant public which purchases the products and services distinguished by the […] trade mark […] the [reputation of the] trade mark consisting in the representation of an apple bitten on the right side belongs to the category of well-known facts” (IPTO decision 193/2016 of 20 May 2016, in the opposition No. 1083/2013, BITTEN APPLE WITH LEAF/BITTEN PEAR WITH LEAF, §§33-34, here; see also IPTO decision 340/2017 of 21 September 2017, in the opposition No. 959/2014, AppleFace, §§ 30-31, here).

A similar stance was taken also in relation to the “DECATHLON PLAY MORE PAY LESS” trade mark, whose reputation was held to be “in the public domain, so it does not need a specific burden of proof on behalf of the opponent” (IPTO decision 40/2015 of 10 February 2015, DECATHLON PLAY MORE PAY LESS/DECATHLON ITALY; on the IPTO practice on well-known facts, please refer also to the comments on the SPRINT portal by Prof. Stefano Sandri: here, here and here, all in Italian).

Of course, this is not to suggest that the burden of proof of genuine use should be lifted entirely when the trade mark at stake is so-to-say “famous”. However, in the assessment of the evidence on trade mark aspects such as genuine use or reputation, administrative bodies and courts should take into account the facts that “are likely to be known by anyone or which may be learnt from generally accessible sources“. Amongst these – it could be argued – one may count the continuous use of the “BIG MAC” word trade mark in relation to (at least) sandwiches in the EU. And this especially in a case where the applicant of the revocation action itself acknowledged that the trade mark was genuinely used in relation to these goods.

Finally, on the relevance of written statements and affidavits before the EUIPO, we note that Art. 97(1)(f) of the EUTMR, provides that “in any proceedings before the Office, the means of giving or obtaining evidence shall include […] statements in writing sworn or affirmed or having a similar effect under the law of the State in which the statement is drawn up“. This provision implies that the admissibility, the formal requirements and the probative value of written statements and affidavits are tied to the law of the country where they were drawn up. To take into account the different approaches, a study on the regimes on written statements in several EU Member States was commissioned by the EUIPO and can be found here.

Giovanni Trabucco

EUIPO Cancellation Division, Cancellation No. 14 788 C, Supermac’s (Holdings) Ltd vs. McDonald’s International Property Company, Ltd., 11 January 2019

Two recent CJEU decisions (Doceram, Nintendo v Bigben) and the fuzzy border between trademarks and designs

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While no definite trend toward the approximation of trademark and design law has so far emerged in European case law, two recent decisions of the CJEU relating to designs show how fuzzy the border between trademark and design rights may be.

***.***.***

In Doceram (C-395/16, ECLI:EU:C:2018:172), the CJEU had to interpret the concept of designs subsisting “in features of appearance of a product which are solely dictated by its technical function”, which are excluded from protection under Article 8(1) of Regulation 6/2002 on Community designs (RCD). The Court was asked, in particular, to state whether such exclusion applies even when alternative designs exist which can perform the same technical function, so that the features of the design cannot be considered indispensable for performing said  function.

It is a classic dilemma. As AG Henrik Saugmandsgaard Øe noted in his opinion, in Europe the Courts and legal scholars have given both negative and positive answers.

The position whereby Article 8(1) RCD and the corresponding national provisions only apply when copying the design is the sole way to achieve the technical result is commonly referred to as the “mandatory” (or “multiplicity of forms”) theory. The opinion whereby, to the opposite, it does not matter whether or not alternative designs can fulfil the same function, insofar as the function in question is the sole driver of the shape, is usually referred to as the “causative theory”. In the past the EUIPO has ruled in line with the first theory [also supported by AG Colomer in the opinion submitted in Philips v. Remington (paragraph 34); and followed by the EU General Court in Industrias Francisco Ivars (see paragraph 22)], which is much more favorable to design right holders. Recently it seems to have veered towards the latter. As far as Italy is concerned, there is probably greater support for the “mandatory theory”.

In Doceram the Court (and before the Court AG Saugmandsgaard Øe) endorsed, with little hesitation, the “causative” theory:

“if the existence of alternative designs fulfilling the same function as that of the product concerned was sufficient in itself to exclude the application of Article 8(1) of Regulation No 6/2002”, it said,

then

“a single economic operator would be able to obtain several registrations as a Community design of different possible forms of a product incorporating features of appearance of that product which are exclusively dictated by its technical function” (paragraph 30).

 That, added the Court,

“would enable such an operator to benefit, with regard to such a product, from exclusive protection which is, in practice, equivalent to that offered by a patent, but without being subject to the conditions applicable for obtaining the latter, which would prevent competitors offering a product incorporating certain functional features or limit the possible technical solutions, thereby depriving Article 8(1) of its full effectiveness” (ibidem).

By stating this, the CJEU de facto extended to designs the principles it affirmed with regard to trademarks “consisting exclusively of the shape of goods which is necessary to obtain a technical result”.

As is well known, in Philips v. Remington the CJEU stated that the relevant impediment to registration [now contained in Article 4(1)(e)(ii) of Directive 2015/2436] “cannot be overcome by establishing that there are other shapes which allow the same technical result to be obtained”: which is, mutatis mutandis, what the CJEU said in Doceram.

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Interestingly, another recent CJEU decision ended up extending the interpretation of provisions concerning trademarks to provisions concerning designs.

In Nintendo v. Bigben (C‑24/16 and C‑25/16, ECLI:EU:C:2017:724), the Court had (inter alia) to issue a preliminary ruling with regard to Article 20(c) RCD, which prevents design right holders from exercising their rights in respect of “acts of reproduction for the purpose of making citations or of teaching, provided that such acts are compatible with fair trade practice and do not unduly prejudice the normal exploitation of the design, and that mention is made of the source”.

The dispute in the main proceedings concerned the use of images of goods corresponding to EU registered designs in the advertisement of goods intended to be used as accessories to the above goods corresponding to EU registered designs. As in the following picture, which shows Nintendo Wii remote controllers, registered as EU designs, together with the charger for such controllers produced and sold by the defendant Bigben.

bigben

In addressing the issue, the Court said that Article 20(c) RCD, insofar as it refers to “acts … compatible  to fair trade practice”, can be interpreted in the light of the case law regarding uses of trademarks made in accordance with “honest practices in industrial or commercial matters” under Article 6(1) of Directive 89/104 [now Article 14(2) of Directive 2015/2436]. And it explicitly applied to designs – again: mutatis mutandis – the principles asserted in Gillette (17 March 2005, C-228/03, ECLI:EU:C:2005:177) with respect to the limitation of trademark rights:

“an act of reproduction of a protected design for the purpose of making citations or of teaching is not compatible with fair trade practice … where it is done in such a manner that it gives the impression that there is a commercial connection between the third party and the holder of the rights conferred by those designs, or where the third party, who wishes to rely on that limitation in the course of selling goods that are used jointly with goods corresponding to the protected designs, infringes the rights conferred on the holder of the design protected by Article 19 of Regulation No 6/2002, or where that third party takes unfair advantage of the holder’s commercial repute” (paragraph 80).

Riccardo Perotti

May #hashtags safely rely on trademark protection?

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In recent years, trademark offices worldwide have been assisting to a new trend: brand owners are increasingly trying to protect hashtags as trademarks. However, some substantive differences existing between these two figures suggest that trademark protection is most of the time improper – and even unnecessary. This, for a number of reasons.

  1. A hashtag can be defined as the symbol # followed by a word, a phrase or a symbol. Hashtags are used on social media in connection to a certain content to synthetically describe or comment it. They were firstly introduced on Twitter, then the main other social networks followed. It must be emphasized, even for legal purposes, that they are freely usable by anyone.

twitter

Technically, the social network indexes and groups all the contents using the same hashtag. Hashtags function as hyperlinks: by clicking on a single hashtag, the user is redirected to a page where all the contents using the same hashtag have been grouped and organized together by the social network.

From a consumers’ view, hashtags are helpful in following topics and finding contents. From a brand’s view, they are useful to control and attract online consumer traffic and enhance the brand appeal. In particular, hashtags are used in advertising campaigns to redirect users to the company website and social networks, where the consumer experience can be enhanced and the brand loyalty reinforced. From a social network’s view, they are a new way of organizing information and topics.

  1. Let’s come to trademarks. As known, besides their essential legal function of indicating the origin of the product or service covered by the trademark, they can perform, if famous (“with reputation”) other factual functions, such as that of ‘guaranteeing’ the quality of a product or service, or that of supporting advertising of, and investment on, the ‘brand’. However, it must be noted that quite often hashtags are not perceived as trademarks, as they do not perform any of the above functions.

Focusing on the distinctive function, if a sign does not have distinctive character the trademark owner shall retain its exclusive right only by proving that the sign has acquired – typically by strong advertising – a ‘secondary meaning’ – i.e.- the capacity to identify, in the eyes of consumers, the product or service as originating from a firm.

Now, as concerns hashtags, it seems all too evident that, except when the word component is wholly or in part of coincident with a trademark already known on the market (e.g. #cokecanpicks or #CokeZeroSugar, as in the below example), it is indeed hard to say that a hashtag is inherently distinctive: in such cases, it would be normally necessary to prove secondary meaning to secure a valid registration.

coke

In this respect, hashtags shall be considered as a mix of domain names and slogans. As for the top level domain names such as “.com” or “.it”, the symbol “#” is considered as not capable of conferring to the sing any distinctive value. Therefore, if the word or the phrase composing a hashtag are not per se distinctive, the presence of the symbol # cannot save the trademark from being prevented registration for lacking of distinctive character. On the other hand, hashtags are often composed by small phrases and shall, therefore, be compared to slogans. As for slogans, the proof of the existence of a distinctive character is more difficult than for ordinary trademarks, as slogans are usually not perceived as source indicators. Against this background, it seems more efficient to try to secure registration to a phrase or word, and not to the same in the form of a hashtag.

Further, their functional character may prevent hashtags registration as trademarks. The functionality doctrine, based on the ‘imperative of availability’ (“the need to keep free”, “Freihaltebeduerfnis”) prevents to use trademark law for inhibiting legitimate competition by allowing a single company to claim a monopoly either on a descriptive term or a useful product feature. And a product feature is considered functional if it is essential to the use or purpose of a good. Now, as hinted, hashtags function as hyperlinks and tags, to group contents. This function is essential for their success.

In the light of the considerations just submitted registering a hashtag as trademark could be quite difficult. That said, provided that a company succeeds in obtaining trademark registration, its enforcement towards third parties could be difficult for a number of reasons:

a) in most cases, hashtags are not perceived as trademarks. As said, they are typically a form of metadata or tag, through which a word or a phrase becomes a searchable expression on a social network. On the one hand, therefore, it is inevitably that the hashtag registered as trademark is used by all social network users willing to do so. Such users would likely not perceive the hashtag as a trademark, a source indicator, but more likely as a descriptive text or as a tool having a specific function.

Obviously, though, trademark owners have an interest to control the use of their hashtag, if registered as trademark, in order to protect it from dilution and/or consumer confusion with a similar trademark. Here lies one of the most strident paradoxes of hashtag registration as trademarks: as trademark registrants, hashtag owners are encouraged to enjoin unauthorized third parties from using their registered sign. At the same time, it is their interest to encourage social network users to make use of the hashtag for commercial benefits — expand brand awareness, ‘lock in’ consumers, and so on. More precisely, brand owners use hashtags in social media contexts for marketing purposes, often in a way that results detrimental to their distinctive character (and, as a consequence, to their possible enforcement). They convert the hashtag into a means through which the public is encouraged to comment, share and ‘talk’ about the brand and its products or service, while gathering information and data about consumers tastes, preferences and so on. Thus, again, notwithstanding a possible registration, even registered hashtags are hardly used as indicators of origin, but merely as collectors of data and comments (of course not possibly subject to any monopoly).

b) Even when hashtags are used and perceived as trademarks, descriptive use, functionality, legitimate use play in most cases play a crucial role in excluding the existence of a trademark infringement.

Here, the constitutionally ranking principle of freedom of expression would play a role in determining where there is a legitimate use of a hashtag. If people are encouraged to use a hashtag to get involved in a topic and participate to a discussion, their use of the hashtag, as such, shall be considered indeed legitimate under the principle of freedom of expression.

c) Therefore, the sole relevant case when the use of hashtags could be protected under trademark law seems that of competitors adopting hashtags confusingly similar to a hashtag that includes (or corresponds to) a registered trademark. This position seems reflected by the main social networks policies, preventing the use of third parties trademarks when such use creates confusions for consumers.

But even in such a case, there is room to affirm that the use of an identical or similar hashtag by a competitor is legitimate. Considering that the hashtag is a means to tag and categorize contents, the well-known case law on keyword advertising could well apply to a third party use of a registered hashtag. In this context, if the use a third party hashtag by a competitor enhances competition and offers consumes an alternative or a wider range of offer, this use could be considered fair according to the keyword advertising case law.

One last remark. Trademark law is just one of several laws that are relevant to the use of hashtags. Among others, privacy law, consumer law, licensing, image rights and advertising are strictly connected to hashtags use and shall be carefully considered by all users adopting hashtags.

Maria Luigia Franceschelli

Shape trademarks: the Court of Florence’s innovative interpretation of “substantial value”

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The Court of Florence recently expressed an interesting view on the interpretation of absolute grounds of registration invalidity provided for signs constituted by the shape of a product, and, in particular, substantial value.

The case concerned the shape of the world wide famous Hermes’ “KELLY” and “BIRKIN” bags, the shape of which was registered as 3D trademark in Italy and before the EUIPO.

Capture

Hermes alleged the infringement of its famous trademarks by an Italian company offering for sale bags highly similar to the ones protected with Hermes shape trademarks. The alleged infringer resisted claiming, as usual in these cases,  that the above trademarks were invalid since, besides other things, they consist of a shape giving substantial value to the bag.

The Court of Florence dismissed such claim, excluding the existence of a substantial value with an unusual (and deeply interesting) interpretation of this prevention.

Firstly, the decision (available here) defines substantial value as a real and concrete aesthetic plus-value – relevant per se to the product, being instead irrelevant the existence of any particular decoration or added part – that cannot be separated from the product itself and is capable of prevailing on the product’s shape features that are necessary to its function.

Then, the Court expressly excluded that the mere ornamental attitude of the product’s appearance could be of relevance in the evaluation on the existence of a substantial value. Differently from the main case law on this ground of refusal (see decision of 15 February 2012 of the Court of Venice on Crocs shoes or decision of 16 June 2015 of the Court of Milan on Flou’s Nathalie bed), the decision essentially denies that substantial value consists in the capability of the shape to influence the consumer’s choice of purchase, so to be itself the main reason why the product is in fact chosen and bought. In the Court’s view, this capability of the object’s shape to catch the consumers’ attention is connected only with trademark reputation.

Only when the aesthetic appearance of the product’s ornamental shape is so relevant to give a particular aesthetic value inseparable from the product itself trademark registration is prevented. Having this interpretation of substantial value in mind, the Court affirmed that “KELLY” and “BIRKIN” bags where valid trademarks as their shape trademark may be separated from the product itself and does not merely consist in the standard appearance of bags.

This decision interestingly tries to plot a demarcation line between substantial value and trademark reputation/distinctiveness that are often overlapped in the context of the discussions on substantial value. The distinction proposed by the Court of Florence could indeed be of help in drafting a clear and new definition of substantial value, whose interpretation is still not crystal clear when applied to real cases. As a matter of fact, and as actually noticed by the Vespa case (see here), the current interpretation of this condition often leads the trademark owner to deny the attractiveness and distinctiveness of the shape of a product when substantial value is under discussion on the basis that an actual recognition of the shape of the product on the market may lead to the assertion of the existence of a substantial value.

The interpretation of the Court of Florence would not fall into this trap and appears to be more logical in the overall context of the trademark protection, as it denies any relevance of the trademark distinctive character in the context of absolute grounds of registration invalidity provided for signs constituted by the shape of the product. This interpretation, although interesting, is however new and currently isolated. While certainly providing food for thought, it downplays the meaning, and legal sense , of the requisite of substantial value as a reason to attract consumers. If only reputation is attractive, what is the meaning, and sense, to verify the occurrence of a substantial value? ‘Substantial’ to what effect?!

Maria Luigia Franceschelli

Court of Florence, case No. 5850/2010, 31 January 2017, Hermes International Scpa, Hermes Sellier SA, Hermes Italie SpA vs. Papini Paolo & C. Snc and Corsini Giorgio di Gianna e Paola Corsini Snc.

Buddha in a cafè? No trademark for the Italian Supreme Court

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On 25 January 2016 the Italian Supreme Court (decision no. 1277, full text here) ruled on the validity of “Buddha Bar” and “Buddha Cafè” trademarks in a three instances dispute in which the defendant came always out winning.

The French companies George V Entertainment e George V Records, respectively owner of Buddha Bar and Buddha Cafè community trademarks, asked the Court of Milan to declare the infringement of their marks by the Italian entrepreneur owner of the “Buddha – Cafè” in Milan. However, both the Tribunal and the Court of Appeal of Milan rejected the claimants’ demand and, indeed, upheld the counter-claim of the defendant affirming the invalidity of the trademarks for lacking of distinctiveness under Article 7, a) of Community Trademark Regulation.

In appealing to the Supreme Court, the French companies argued that their signs would be deemed as particularly evocative and strong trademarks for the reason that they establish an anomalous connection between words which are conceptually disjointed: from the one side Buddha and on the other side Bar and Cafè.

For its part, the Supreme Court pointed out that, in order a sign to be valid pursuant to Article 4 of CTM Regulation, it is not enough that it should have an ‘expressive content’, but it is essential that the meaning of the term must be capable of distinguishing the goods or services of one undertaking from those of other undertakings. This remark concerns the standard law, and therefore it is undisputed.

More perplexingly the Court, as already set forth by both the Tribunal and the Court of Appeal, denied the distinguishing character of the term Buddha assuming that it not only (a) calls to mind a religion but also (b) transmits adhesion or interest to a philosophy and a way of life which characterize a custom pertaining to the most different expressions of the social behavior like literature, music, figurative arts and cuisine, so as to have become a trend.

As a consequence the Court said that the combination between the term “Buddha”’ and the terms “Bar” and “Cafè” is not unusual, because such meeting places are historically linked to specific expressions of the literature and in general of the art of the occidental cultural tradition.

In the light of the above, the Supreme Court dismissed the appeal proposed by the companies George V Entertainment and George V Records, hence confirming the invalidity of their two community trademarks.

The final and debatable outcome is that anyone cannot use the Buddha’s name on an exclusive basis to “denote a product or service”.  From a general perspective the upshot is even more puzzling: the most of characters and movements of culture, literature, art, and philosophy used to hang out at cafès, then, following this decision of the Supreme Court, none of the term referred to them should never be registered as a denominative trademark in combination with the words “bar” or “cafè” for cafeteria’s products or services.

It should be also noted that the Court, once established the lack of distinctive character, has deemed absorbed – then has failed to consider – the question whether the trademarks are contrary to public policy. Maybe simply affirming the invalidity of such trademarks due to their vilification of Buddhist thought would have been quite logically and reasonably commendable.

Matteo Aiosa

Italian Supreme Court, 26 January 2016, No. 1277, George V Entertainment s.a. and George V Records e.u.r.l. v. Buddha Cafè S.r.l.

The EU trademark reform package has been definitively approved

IPlens1 Comment

On 15 December 2015 the European Parliament approved on second-reading the reform of the european trademark system. The reform consists first of all of the replacement of the existing Trademarks Directive 2008/95/EC with the new Directive 2015/2436/EU (available here, the “Directive”), which has been published in the Official Journal of the European Union on 23 December 2015.

The Directive entered into force on 12 January 2016, 20 days after its publication, but the Member States will have 3 years to transpose its provisions into their national laws. According to Article 55 of the Directive, Directive 2008/95/EC is repealed but with effect from 15 January 2019.

On the other hand the Regulation (EU) n. 2015/2424 (available here, the “Regulation”), amending the Community Trademark Regulation 2009/207/EC and repealing the Commission Regulation n. 2869/1995 on the fees payable to the OHIM, has been published in the Official Journal of the European Union on 24 December 2015. The Regulation will enter into force on 23 March 2016, 90 days after its publication.

While the provisions of the Regulation concerning community trademarks will obviously directly enter into force, those of the Directive concerning national trademarks may undergo changes during the process of transposition into the various domestic laws (as it happened in Italy, e.g. with the provision concerning the obligation of the licensee to use the trademark to distinguish goods or services identical – in quality – to those placed on the market by the owner or by other licensee, an obligation which was not foreseen by the Directive 2008/95/EC).

The main amendments introduced by the reform (for our previous comment on the reform see here) can be summarized as follows:

  • the replacement of the names “Office for Harmonization in the Internal Market” and “community trademark” with “European Union Intellectual Property Office” (“EUIPO”) and “European Union trade mark” (“EU trade mark”) (Art. 1 point 1 and 7 of the Regulation);
  • the repeal of the requirement of graphic representability from the trademark’s definition and its replacement with the provision that a sign can be represented in any manner, not necessarily graphic, enabling the competent authorities and the public to determine the clear and precise subject matter of the protection afforded to its proprietor (Art. 3 lett. b of the Directive and Art. 1 point 8 of the Regulation);
  • the extension of the absolute grounds of refusal or invalidity of the registration provided for signs constituted by a shape also to signs constituted by «another characteristic», i.e. to signs constituted for example by a smell, a sound or a colour, which will not be registrable if that characteristic is considered imposed by the nature of the product, or necessary to obtain a technical result or giving substantial value to the product; think, for example,  to a  typical alarm sound whose registration is claimed  for home-surveillance apparels (Art. 4.1 lett. e of the Directive and Art. 1 point 8 of the Regulation);
  • the codification of the principles adopted by the CJEU as concerns the renowned trademarks about the application of their protection also when the sign is used for products or services which are identical or similar to those for which the trademark is registered (Art. 5.3 lett. a and 10.2 lett. c of the Directive and Art. 1 point 10 lett. b and point 11 of the Regulation);
  • the addition, to the provision concerning the rights conferred by the registered trademark, of the specification that the owner of the trademark may also prohibit the use of the sign as a trade or company name and the use of the sign in comparative advertising, if made in a way which is contrary to the Directive 2006/114/EC (Art. 10.3 lett. d and f of the Directive and Art. 1 point 11 of the Regulation);
  • the introduction of provisions on the goods in transit in the EU concerning the faculty for the owner of the trademark to prevent third parties from bringing fake goods, in the course of trade, into the Member State where the trademark is registered (Art. 10.4 of the Directive and Art. 1 point 11 of the Regulation);
  • the amendments to the provision concerning the limitation of the effects of a trademark consisting in the specification that the owner is not entitled to prohibit to a third party to use in the course of trade the name or the address if the third party is a natural person (Art. 14.1 of the Directive and Art. 1 point 13 of the Regulation);
  • the addition of the provision that the owner is not entitled to prohibit a third party from using in the course of trade signs or indications which are “not distinctive” (Art. 14.1 of the Directive and Art. 1 point 13 of the Regulation);
  • the provision that applications for EU trademarks can be filed only at the EUIPO (Art. 1 point 25 of the Regulation);
  • the addition of provisions concerning the designation and classification of goods and services according to which they have to be identified by the applicant with sufficient clarity and precision in order to determine the extent of the protection sought (Art. 39 of the Directive and Art. 1 point 28 of the Regulation).

Among all the new provisions, those on the goods in transit in the EU have been so far the most criticized, and are however those which have undergone most changes before the approval of the final text of the Directive and of the Regulation.

Moreover, it is not yet fully clear the significance of the provision according to which the entitlement of the owner shall «lapse» (in the italian text: «si estingue», in the french text «s’éteint», in the german text «erlischt», in the spanish one «extinguirá», etc.) if during the proceedings to determine whether the registered trade mark has been infringed, evidence is provided by the «declarant» (i.e. the defendant, holder of the goods) that the proprietor of the registered trade mark is not entitled to prohibit the placing of the goods on the market in the country of final destination. Probably the only reasonable meaning that can be attributed to this provision is that if that evidence is provided, the owner cannot bring future actions to prohibit the marketing of the same branded goods.

Sara Caselli

The Court of Turin ruled that shape of Ruinart champagne bottle has not distinctive character and rejected lookalike claims

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The Court of Turin issued an interesting decision about the possibility to protect the shape of the bottle of the renowned Ruinart champagne (see the Italian text of the interim decision in the 2014 here, confirmed by the appeal in 2015, here). The action was brought by the French company MHCS, producer of Ruinart, against a south-Italian wine maker, Farnese Vini S.r.l. MHCS claimed that two bottles of Farnese spumante, Cuvée Cococciola and Gran Cuvée Rosè:

cuvee

recall all distinctive elements of Ruinart bottle (capsule, neckband, label, and particularly the shape), thus (i) infringing 3 community (3D and figurative) trademarks owned by MHCS:

New Picture (2)

and (ii) constituting an act of unfair competition (an confusing lookalike).

The Court first considered the single elements covered by MHCS trademarks (limited to: label, capsule, neckband, coat of arms on the main label and on the neckband, color, and Ruinart name). In relation to the capsule and the neckband, the Court found that, also in light of their necessary nature, the different features adopted by Farnese (colors, words, boards, etc.) sufficiently differentiate the two elements. In relation to the labels, the unique similarity is the oval/elliptic shape (although not perfectly overlapping). The Court considered the label’s form strictly connected to the shape of the bottle (for practical need of adhesion of the label to the bottle and for aesthetic reasons) which is oval as well, and therefore not protectable per se.

As to the shape of Ruinart bottle (not protected by MHCS community trademarks), the Court held it cannot be protected as a de facto trademark. Indeed, the Court considered the shape of the Ruinart bottle quite common and lacking of distinctive character (which occurs only when the shape is original and unusual within the market). Farnese demonstrated that its bottle is in fact a commonly available model named “Abram”, similar to the typical champagne bottle (in Italian, the so called Champagnotta prestige cuvée).

Finally, the Court excluded that Farnese bottles could be considered as a confusing look alike of the Ruinart’s ones. According to the Court of Turin’s case law, slavish imitation requires 3 conditions. Indeed, the shape of the product (or at least the combination of its single elements) must (i) be original (i.e. elaborated with respect of common shapes); (ii) not be technically necessitated; and (iii) show distinctive character (i.e. the ability to characterize the goods as originating from that particular company). Conversely, each element of Ruinart bottles claimed by MHCS (including the shape) is necessitated or common, nor their combination is distinctive.

On the contrary, the Court held that the real distinctive features of Ruinart bottles are (i) Ruinart name, (ii) the coat of arms, (iii) the label colors, and (iv) the chromatic combination between label and writings: all elements not reproduced by Farnese bottles. Moreover, the average consumer of Ruinart wines should be a careful one, thus further reducing any risk of confusion.

This decision follows the leading Italian case law on unfair competition, which is mainly focused on a “risk of confusion” analysis. However, it is worth noting that in recent years a different case law has followed a look-alike analysis beyond confusion (see Court of Milan 20 March 2014 and Court of Bari 20 October 2011). In this regard, the use of very similar elements of a packaging/aspect of a product, even without an actual risk of confusion, may be considered as an attempt to recall the most renowned product and the successful image/aura of the competitor’s brand, thus taking advantage of its commercial strategy. This analysis is based on a concept similar to the “link” required by the CJEU between the mark with a reputation and the similar sign (Adidas, C-408/01). However, even if said Milan and Bari Courts’ approach had been followed, the decisum would not have probably changed, since the similar elements and their combination were in fact considered as common and not distinctive.

Francesco Banterle

Court of Turin, 24 October 2014 and 17 April 2015, MHSC v. Farnese Vini S.r.l. et al.

“Position” Trade Marks: the General Court of the EU on the Likelihood of Confusion. The “Adidas’ Three Stripes” Case

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On May 21st, 2015 the General Court of the EU laid down some key issues on the assessment of the likelihood of confusion between “position marks”, meaning those figurative marks that are registered with the indication of the specific position where the mark is displayed on a certain good (full text here).

Case T-145/14, Adidas AG v. OHIM, concerned the application for registration, by Belgian Shoe Branding Europe BVBA, of a “position mark” for adidas“footwear”, consisting in two parallel lines placed on the side of a shoe, similar to the famous Adidas’ “three stripes”, though differing in number and inclination. Adidas AG filed a notice of opposition, based on its earlier rights.

Both the Opposition Division and the Board of Appeal of the OHIM rejected Adidas’ opposition.

However, the General Court annulled the decision of the Board of Appeal, ruling that: 1) the marks at issue have more common elements than differences; 2) the average consumer of that kind of products does not demonstrate a high degree of attention, normally perceiving a mark as a whole and not proceeding to analyse its various details, so that the overall impression produced by the two marks is that of similarity; 3) a mark bearing similar characteristics to those of a highly distinctive mark with a strong reputation may mislead the public into believing that the goods come from the same undertaking.

One of the key issues of the commented case is defining the degree of attention of the average consumer when he prepares and makes his choice between different products. In fact, while on one hand the Board of Appeal stated that the average consumer is accustomed to seeing geometric designs on shoes and pays attention to the details of “sport shoes”, on the other hand the General Court judged that, since “sport shoes” are everyday consumer goods, the relevant public is made of the average consumer with an average degree of attention. The Board of Appeal was probably right, because consumers, when purchasing “sport shoes”, usually seek good quality, solid and technical shoes, with specific features and produced by a trusted mark, hence applying a medium / high degree of attention.

It must also be pointed out that, despite what the General Court stated in this decision, previous EU decisions have admitted that the more famous a mark is, the more likely the average public will notice even the smaller differences; because it knows the trade mark in almost every detail and, therefore, can more easily recognize and distinguish imitations, so that the risk of confusion/connection between the signs is more difficult to occur (see Claude Ruiz-Picasso and Others v. OHIM, T-185/02, 22 June 2004, confirmed by C-361/04, 12 January 2006; on the renowned mark see also Court of Bologna, 20 October 2011, in GADI, 2013, n. 5954, p. 264 ss.).

Eleonora Sbarbaro

General Court of the EU (EGC), Adidas AG v. Office for Harmonisation in the Internal Market, 21 May 2015, Case T-145/14

The EU trademark reform has reached the final steps

IPlens3 Comments

The reform of the European trademark system may become a reality before the end of 2015.

In addition to the Commission Regulation no. 2869/1995 on the fees payable to the Office for Harmonization in the Internal Market, the reform package presented by the Commission on March 2013 focuses, as known, the Trademarks Directive 2008/95/EC and the Community Trademark Regulation 2009/207/EC.

The Commission’s “Proposals” are based on the “Study on the Overall Functioning of the European Trade Mark System” (available here), realized by the Max-Planck Institut of Munich upon request of the same Commission and published on February 2011. The Proposals  aim at  modernizing and  harmonizing the community and national trademark’s systems (by simplifying the registration procedure and intervening on the substantive law) as well as at strengthening the enforcement of  counterfeiting.

On June 10th 2015, the Council’s Permanent Representatives Committee has approved the final compromise texts of the trademark reform package, and on June 16th 2015 the compromise agreement has been voted by the Parliament’s Legal Affairs Committee.

The final text of the Regulation can be found here, while the final text of the Directive is here.

The approved texts are actually not yet absolutely “final” as they still need to go through the legal-linguistic revision before the final endorsement by the Council and by the European Parliament. So, unless there are further delays, while most of the provisions of the Regulation will come into effect in early 2016, the Member States will have three years to transpose the Directive into national law.

The new features introduced by the reform range from formal ones, such as the adoption of the names “european trademark” instead of “community trademark” and “European Intellectual Property Office” instead of “Office for Harmonization in the Internal Market” and the reducing of registration fees, to substantive ones, such as the rejection of the requirement of the graphic representability, the extension of the absolute grounds of refusal or invalidity of the registration provided for signs constituted by a shape to signs constituted by “another characteristic”, the addition to the provision concerning the rights conferred by the registered trademark of the specification that the owner of the trademark may also prohibit the use of the sign in comparative advertising if made in a way which is contrary to the Directive 2006/114/EC and the introduction of provisions on the goods in transit in the EU.

Even if the reform presents some positives, it is not exempt from criticism.

Inter alia, by reducing registration fees of community trademarks it maintains the community and the national trademarks systems in competition.

Also, by extending the provisions on the shape trademarks to sign constituted by other characteristics, the revision makes non-traditional trademarks harder to register. This kind of trademarks will indeed not be registrable if they exclusively consist of a characteristic (such as, for example, a sound or a smell) which can be considered imposed by the nature of the product, or necessary to obtain a technical result or giving substantial value to the product.

But the most discussed and criticized provision is the one providing that the trademark owner is entitled to prevent third parties from bringing fake goods, in the course of trade, into the Member State where the trademark is registered. First of all, because the text has udergone many changes and, secondly, because its last version provides that the entitlement of the owner shall lapse if during the proceedings to determine whether the registered trade mark has been infringed, evidence is provided by the declarant or the holder of the goods that the proprietor of the registered trade mark is not entitled to prohibit the placing of the goods on the market in the country of final destination. This clearly gives trademark owners great power to prevent fake goods transiting through the Community as it will be very difficult for the holder to prove a negative.

In the end, the reform doesn’t take advantage of the occasion to codify consolidated principles affirmed by the EU Court of Justice such as those expressed in the General Motors case (C-375/97), in which the famous trademarks have been defined as registered trademarks known by a significant part of the consumers of the products or services which said marks cover in a substantial part of the EU territory. The provisions on famous trademarks contained in the current Directive and  Regulation do not express such a definition of reputation and this lacuna could have been filled by the reform as the principles expressed in the said case are unanimously shared.

Sara Caselli

* due to a technical error, “steps” was erroneously reported as “jokes” in the title. We apologize.