The Court of First Instance (CFI) has dismissed the appeal of a Polish company who sought registration for a complex sign consisting of colorful ribbons and the numerical elements 100 and 300, on the grounds that the sign was of a descriptive nature.
Following an unsuccessful application and appeal before OHIM, Agencja Wydawnicza Technopol bought forwards an appeal to the CFI, arguing that all the elements of those marks, and in particular the numerical elements 100 and 300, were distinctive. It further stated that, even if one of those elements were not distinctive, it would acquire distinctiveness in combination with the other elements.
The applicant sought registration of the numerical mark for three classes of goods: printed matter, manipulative puzzles, and the organization of competitions. The CFI found that due to the quantitative nature of the signs, they would immediately be perceived by the consumer as a descriptive characteristic of the three goods in question.
The CFI further noted that the number of pages in a publications or the number of pieces in a puzzle were determining factors in deciding whether to make a purchase. The fact that the relevant public would perceive those numerical elements as providing information on the designated goods, makes the application of the numerical element on the mark misleading.
The CFI thus upheld the original decision made by OHIM, finding that the figurative elements of the marks applied for, that is to say the colors, frames, ribbons and the typography used, were too ordinary to make an impression on consumers.
Facts
On 15 June 2004, the applicant, Agencja Wydawnicza Technopol, filed two Community trade mark applications with the Office for Harmonization in the Internal Market (OHIM). The marks for which Agencja Wydawnicza Technopol sought registration were complex signs consisting of a graphical element (one red and one yellow ribbon) and the numerical element 100 or 300.
OHIM informed the applicant that the signs were not eligible for registration for all the goods concerned, pursuant to Article 7(1)(b) and (c) of the 1994 Regulation (now the 2009 Regulation). OHIM found that those signs were descriptive indications and that the colors and graphical elements used could not affect that conclusion.
Maintaining that the numerals were eligible for registration, the applicant filed two unsuccessful appeals before OHIMs Board of Appeals. Although The President of the Fourth Board of Appeal requested Agencja Wydawnicza Technopol, in accordance with Article 38(2) of the 1994 Regulation (now the 2009 Regulation), that it disclaimed any exclusive right to the figures 100 and 300 included in the marks applied.
European Court of Justice – Justice and Application – Full texts
