[Editor's note] Like most countries and regions in the world, The rulings of the Court of Justice of the European Union have important guiding significance and predictive value for understanding the legal norms of the European Union. Esabaril (ELZABURU) At the beginning of each year, typical cases of the Court of Justice of the European Union in the previous year are summarized and published, And a brief review of each case, In order to help customers and partners to understand the EU intellectual property norms. Given the importance of Chinese customers and partners, We try to publish the Chinese version of typical cases on a weekly basis, It is convenient for Chinese partners to learn the latest information in a timely manner.

　　 [background]

　　AS Apply for registration of German word trademark "#darferdas? " , Designated control 25 Class goods, namely "clothing, especially T T-shirt, Shoes and hats, etc" .

　　The German Patent and Trademark Office considers trademarks to lack distinctive features, The application for registration is rejected. AS Disobey the decision, A lawsuit was filed with the Federal Patent Court of Germany. The court held that, Dispute mark "#darferdas? " It consists of several characters and common German words, It's just a way of talking about a topic. Pound sign ( "#" ) Invite the public to discuss the topic "Darf er das? " (German, "Can he do that? " ) . Both the trademark Office and the court held that, Place it in T Shirt front position, The public will interpret it as a simple question, Rather than a trademark that identifies the origin of goods.

　　The case was appealed to the German Federal Court of Justice. Upon examination, Court determination, It cannot be ruled out that placing the logo on the front surface of the garment is one of the ways to use the trademark. besides, Logos can also be placed on labels sewn to the inside of clothing. Place on the inside label of clothing, The public generally regards it as a trademark, A sign used to distinguish the source of business (trademark) ; And the image placed on the outer surface of the garment, Symbols and words, etc, Not always.

　　Refer to relevant precedents, The court of hearing held that, Determine whether a sign has distinguishing features, And therefore can be registered as a trademark, It is not required that the mark constitute trademark use in all possible ways.

　　In view of this, The Court of Admissibility requested the European Court of Justice to make a preliminary ruling on the following questions: "A sign is used in an unusual way, However, there is still a reasonable possibility that it may be used in practice as an indication of the origin of goods or services, Whether the mark can be identified as having distinguishing features (distinctive character) ? "

　　 [conclusion]

　　The European Court of Justice first noted, One contains the pound sign ( "#" ) Mark of, As long as it has the ability to distinguish the source of the goods or services it is designated to use, It should be allowed to be registered as a trademark.

　　Check whether the above requirements are met, The examining authority shall take into account all relevant facts, Including all possible uses of the trademark being applied for.

　　As the applicant submitted the trademark application, There is no obligation to state the purpose for which the mark is applied (Even after registration, The applicant still has five years to put the mark to practical use consistent with its basic function) , The competent authority can only determine whether the disputed mark has the distinguishing features required for a registered trademark based on the usual circumstances in the relevant commercial field.

　　specifically, For the common use of trademarks in related fields, The competent authorities are obliged to examine all relevant facts, Determine whether the mark submitted is used in any of the above common ways, Can be regarded by ordinary consumers of the class of goods or services designated for registration as indicating a commercial source.

　　On the contrary, There is a possibility, though, But is unlikely to be used in practice because it has no practical meaning, The competent authorities need not take the initiative to consider. Unless the applicant can provide proof, This usually uncommon use is indeed common in related business fields.

　　In the field of clothing, A common place to place the logo is on the outer surface of the garment (Front or back) And medial (label) . Now that the court has confirmed these two common ways of using trademarks, That is, it shall determine whether to place the dispute mark in any of the above locations, There is at least one location where the average consumer would consider it a trademark.

　　 [comment]

　　Use pound sign ( "#" ) It is becoming more and more common in reality as a means of promotion, And slogan (slogan) Similar case, Registering it as a trademark may have the following problems: Sometimes it's hard to just promote (It's just seen as social information) Function of, And as a function of distinguishing commercial sources of goods or services (Trademark function) Draw a clear line between them.

　　The European Court of Justice made it clear, It cannot be ruled out that the pound sign may have the function of distinguishing the source of goods or services, Therefore, it is necessary to evaluate whether it can achieve the distinguishing features required by the trademark.

　　In addition, Applicants should also note, When examining whether a mark can be registered as a trademark, The competent authorities need to consider common usage in the relevant field, That is, except in special circumstances, The manner in which the competent authority considers the trademark to be commonly used. here "Special circumstances" , Only the applicant can provide sufficient evidence to prove it, (It is not common in related industries) Usage patterns that are thought to be virtually unrelated are indeed common, Would be considered.

　　compile: Liu Dan, Esabarry Legal Counsel　　source: Esabaril (ELZABURU) Intellectual property rights