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On 16 January 2014 the European General Court (EGC) decided that a button in the middle of the ear of a toy teddy bear (a so-called “position mark”) cannot be registered as a Community Trademark as it lacks distinctiveness (Decision T‑434/12 of 16.01.14).
Introduction
In order to assess whether a mark possesses the necessary distinctiveness or not, various factors need to be taken into account. On the one hand side, the court has to review the specific goods and services of the applied for trademark, and, on the other hand, it has to determine if intended brand is capable to enable the average consumer to recognize the source of origin.
Background of the Case and Subject Matter
In the present case, the in Germany in 1880 founded well-known and high-end plush toy manufacturer, Margarete Steiff GmbH, filed for the following Community Trademark, in this specific case the “button in the ear” as a so called “position mark” – as seen below:
The applicant is convinced that its stuffed animals are recognized by the average consumer because of the unusual placement and positioning of the button on the left ear in addition to the fact that it is made of metal and therefore stands out from the rest of the plush toy. For these reasons, the applicant argued, the bottom for the stuffed animals should be registered as a trademark as the average, generally well-informed consumer will recognize the product’s origin. The applicant uses the said button on its plush toys as follows:
Decision of the EGC
The EGC is of the opinion that the consumer is accustomed to a wide range of stuffed animals with many different designs and in countless variations. Buttons placed on different parts of the stuffed animals are nothing special. Neither the material of the button, northe asymmetric application - only on the left ear - is unusual according to the EGC. As a consequence, the court decided that the button as a typical design element does not give the consumer any information as to the products origin. As a result and for the reasons outlined briefly above, the EGC decided that the applied for “button” as a so-called “position mark” lacks distinctiveness and in this case cannot be registered as a Community Trademark.
The applicant is convinced that its stuffed animals are recognized by the average consumer because of the unusual placement and positioning of the button on the left ear in addition to the fact that it is made of metal and therefore stands out from the rest of the plush toy. For these reasons, the applicant argued, the bottom for the stuffed animals should be registered as a trademark as the average, generally well-informed consumer will recognize the product’s origin. The applicant uses the said button on its plush toys as follows:
Decision of the EGC
The EGC is of the opinion that the consumer is accustomed to a wide range of stuffed animals with many different designs and in countless variations. Buttons placed on different parts of the stuffed animals are nothing special. Neither the material of the button, northe asymmetric application - only on the left ear - is unusual according to the EGC. As a consequence, the court decided that the button as a typical design element does not give the consumer any information as to the products origin. As a result and for the reasons outlined briefly above, the EGC decided that the applied for “button” as a so-called “position mark” lacks distinctiveness and in this case cannot be registered as a Community Trademark.
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INTA in cooperation with the Munich Bar Association (Rechtsanwaltskammer München) will hold Munich’s 2nd Roundtable designed specifically for Paralegals and Trademark Administrators under the title:
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DATE: Thursday, March 13, 2014
TIME: 2:00 pm – 6:00 pm
LOCATION: Munich Bar Association (Rechtsanwaltskammer München)
Tal 33
80331 Munich – GERMANY
________________________________________________________________ The Roundtable will be held in German and has been developed specifically for:- Paralegals (Patentanwaltsfachangestellte/r, Rechtsanwaltsfachangestellte/r, Markensachbearbeiter/in)
- Trademark Administrators (TMAs)
- Hot Topics: IP, trademark and domain name issues.
- Update from the German Patent and Trademark Office (GPTO).
- Discussing and comparing the roles of in-house and law firm paralegals.
- Tips to enhance your career, including continued legal education possibilities for paralegals.
- Corsearch - a Wolters Kluwer business
- GSI Office Management GmbH – IP Management Solutions
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TMclass helps applicants to search for and classify goods and services (terms) needed to apply for trademark protection.
The German Patent and Trademark Office (GPTO') is as of 12 November 2013 part of the Common Harmonized Database of goods and services for trademark classification. The GPTO is now offering German translations of Harmonized Database to their efiling users. This successful harmonization is the result of joint effort and collaborative work within the framework of the European Trade Mark and Design Network. The GPTO´s integration into the Harmonization Project for goods and services marks another step forward in improving predictability, which in turn benefits users. The Harmonized Database, with its new member, the GPTO, is also available through TMclass at: http://tmclass.tmdn.org
The German Patent and Trademark Office (GPTO') is as of 12 November 2013 part of the Common Harmonized Database of goods and services for trademark classification. The GPTO is now offering German translations of Harmonized Database to their efiling users. This successful harmonization is the result of joint effort and collaborative work within the framework of the European Trade Mark and Design Network. The GPTO´s integration into the Harmonization Project for goods and services marks another step forward in improving predictability, which in turn benefits users. The Harmonized Database, with its new member, the GPTO, is also available through TMclass at: http://tmclass.tmdn.org
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Today, on 17 October 2013, the 40th anniversary of the signature of the European Patent Convention (EPC) in Munich, Germany, is being celebrated. The festivities are taking place at the Headquarters of the European Patent Office (EPO), the German Technological Museum ("Deutsches Museum") and the Munich Residenz, where the celebration ends after a concert given by the Patent Orchestra Munich. Please find the full program of the 40th anniversary, including the winners of the EPO Innovation Contest here:
What is the EPC and what makes it so unique?
The European Patent Convention (EPC) is a multilateral treaty providing an autonomous legal system according to which European patents are granted. The term "European patent" is used to refer to patents granted under the European Patent Convention. However, a European patent is not a unitary right, but a group of essentially independent nationally-enforceable, nationally-revocable patents,subject to central revocation or narrowing as a group pursuant to two types of unified, post-grant procedures: a time-limited opposition procedure, which can be initiated by any person except the patent proprietor, and limitation and revocation procedures, which can be initiated by the patent proprietor only.
The EPC provides a legal framework for the granting of European patents,via a single, harmonised procedure before the European Patent Office (EPO). A single patent application, in one language, may be filed at the European Patent Office or at a national patent office of a Contracting State, if the national law of the State so permits.
What will the future bring?
In 2012, representatives of the EU Member States finally - after years of discussions - have decided to implement the European unitary patent. The European unitary patent will soon guarantee supranational protection for inventions in 25 countries across Europe.
The regulations entered into force on 20 January 2013. However, they will only apply from 1 January 2014 or the date of entry into force of the Agreement on a Unified Patent Court, whichever is the later.
For more information, please see the EPO's website:
What is the EPC and what makes it so unique?
The European Patent Convention (EPC) is a multilateral treaty providing an autonomous legal system according to which European patents are granted. The term "European patent" is used to refer to patents granted under the European Patent Convention. However, a European patent is not a unitary right, but a group of essentially independent nationally-enforceable, nationally-revocable patents,subject to central revocation or narrowing as a group pursuant to two types of unified, post-grant procedures: a time-limited opposition procedure, which can be initiated by any person except the patent proprietor, and limitation and revocation procedures, which can be initiated by the patent proprietor only.
The EPC provides a legal framework for the granting of European patents,via a single, harmonised procedure before the European Patent Office (EPO). A single patent application, in one language, may be filed at the European Patent Office or at a national patent office of a Contracting State, if the national law of the State so permits.
What will the future bring?
In 2012, representatives of the EU Member States finally - after years of discussions - have decided to implement the European unitary patent. The European unitary patent will soon guarantee supranational protection for inventions in 25 countries across Europe.
The regulations entered into force on 20 January 2013. However, they will only apply from 1 January 2014 or the date of entry into force of the Agreement on a Unified Patent Court, whichever is the later.
For more information, please see the EPO's website:
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ICANN will launch more than 1,000 new Top Level Domains (TLDs). Starting in early 2014, new TLDs like .shop, .web or .hotel will have a huge impact on how we find and distribute information online.
From a trademark perspective the question is: How can I protect my brand? What do I need to know before the launch of the new TLDs? What can I do? What mechanisms exist? All these legal, technical and strategic questions will be discussed in-depth at the upcoming newdomains.org Munich Conference on new TLDs from 26 - 28 October 2013.
Keynote speaker of the conference is ICANN's President and CEO, Mr. Fade Chehadé. This conference is hosted by united-domains AG and under the patronage of the German Federal Ministry of Economics and Technology. The two day agenda consists of workshops relating to Brand Risk Manangement, Marketing & Google's gTLD Strategy to ICANN's policies and contracts.
For more information and in order to sign up, please see: www.newdomains.org
Keynote speaker of the conference is ICANN's President and CEO, Mr. Fade Chehadé. This conference is hosted by united-domains AG and under the patronage of the German Federal Ministry of Economics and Technology. The two day agenda consists of workshops relating to Brand Risk Manangement, Marketing & Google's gTLD Strategy to ICANN's policies and contracts.
For more information and in order to sign up, please see: www.newdomains.org
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Did you know that every minute 219 counterfeit goods are detained in the EU?
Fact is that the value of intercepted goods in 2012 was still extremely high, at nearly €1 billion. The EU Counterfeiting Report 2012 in detail gives statistics on the type, provenance and transport method of counterfeit products detained at the EU's external borders.
According to the report, cigarettes accounted for a large number of interceptions (31%), miscellaneous goods (e.g. bottles, lamps, glue, batteries, washing powder) were the next largest category (12%), followed by packaging materials (10%). Postal and courier packages accounted for around 70% of customs interventions in 2012, with 23% of the detentions in postal traffic concerning medicines.
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For the 17th time the German Innovation Prize (in German: "Deutscher Zukunftspreis - Preis des Bundespräsidenten für Technik und Innovation") has been launched. The winners of this renown prize will be handed over by the German Federal President and will receive 250.000 EUR.
DEADLINE TO PARTICIPATE: 2 December 2013
All ideas and inventions must be handed in latest by 2 December 2013. For more information on who can take part and what other prerequisites there are, please see the website (in German only) of the German Patent and Trademark Office, who is supporting this innovation prize or the website of the "Deutscher Zukunftspreis" (also in German only) itself.
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The world's fifth largest national patent and trade mark office (GPTO / DPMA) has now published its annual report 2012 English, which includes information and statistics all around patents, trademarks, utility models, designs etc.
Although the financial system in Europe is still in a tense situation, there is presently no significant impact on the number of new IP applications at the GPTO. Innovators and business concerns focus on innovation in order to strengthen their competitiveness.
Click on the following links to be redirected to the GPTO's website for the full, approx. 120 page, Annual 2012 Report in ENGLISH or GERMAN.
Although the financial system in Europe is still in a tense situation, there is presently no significant impact on the number of new IP applications at the GPTO. Innovators and business concerns focus on innovation in order to strengthen their competitiveness.
Click on the following links to be redirected to the GPTO's website for the full, approx. 120 page, Annual 2012 Report in ENGLISH or GERMAN.
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Being active as IP attorneys and dealing with various large and small companies and helping them protect their intellectual property, we often see the internal struggles.
The following cartoon by Tom Fishburne pinpoints and clearly visualizes the problems on how and why innovative ideas are abandoned.
We thank Tom Fishburne and his "marketoonists" for allowing the use on this blog.
We thank Tom Fishburne and his "marketoonists" for allowing the use on this blog.
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By chance we came across this piece of artwork called "The Corporate States of America". It is a graphic design developed by the writer, graphic artist and photographer Steve Lovelace.
As trademark and design enthusiasts, we thought we must share this with you.
(c) 2012 Steve Lovelace
(c) 2012 Steve Lovelace