October 2009
Joop! denied registration of exclamation mark as a CTM!
Joop! has failed to persuade the European Court of First Instance that it has acquired distinctiveness in the exclamation mark symbol.
The well known German fashion and fragrance company had applied to register two illustrations of the punctuation mark as Community Trade Marks (CTMs) back in 2006; one a standalone exclamation mark and the second an exclamation mark within a rectangular frame.
The Office for Harmonisation of the Internal Market (OHIM) which is responsible for the registration of CTMs had rejected both of Joop!'s applications for lacking distinctive character, a necessary factor for any CTM application to be permitted to proceed to the next stage of the registration process.
Joop! appealed to the Court of First Instance in the hope that it would be able to demonstrate to the European Judges that it had acquired distinctiveness in the CTMs applied for. However, the Court upheld OHIM’s decision stating that though it is possible for trade marks lacking distinctive character to be permitted registration if acquired distinctiveness can be proven Joop! had failed to demonstrate this with regard to the marks applied for. It added that even consumers with a "high degree of attention" would not be able to determine the origin of goods/services by an exclamation mark.
Briffa Comment
Proving acquired distinctiveness in a common word or symbol is very difficult and near impossible in relation to a symbol as generic as an exclamation mark.
Even if such marks are permitted registration they are always going to open to attack from other parties arguing that a single commercial entity should not be permitted monopoly rights over a word or symbol which is commonly used.
In turn we always advise that when developing a brand for your business you aim to create a brand which is as distinctive as possible.
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