Joop Loses Bid To Register Exclamation Mark

by Ulrika Lomas, for LawAndTax-News.com, Brussels

07 October 2009

The European Court of Justice has ruled that German fashion firm Joop! cannot register an exclamation mark as a Community Trade Mark.

In a decision released on September 30, the Court of First Instances for the European Communities said that "the figurative signs in question have no distinctive character and Joop! has not demonstrated that they have acquired such character through their use in the European Community."

On 7 September 2006, Joop! filed two applications for registration of trade marks at the Office of Harmonization for the Internal Market (OHIM), the Community trade mark office. One application was for an exclamation mark, and the other was for the same symbol, but enclosed within a rectangular boundary.

The OHIM examiner rejected the applications on the grounds that they were devoid of "distinctive character." The appeals filed by Joop! at OHIM against the examiner’s decisions were also rejected because, with regards the goods in question (jewellery, clothes and related goods), "the relevant public would perceive the signs at issue as mere laudatory advertising, or as an eye-catching gimmick, and not as an indication of the commercial origin of those goods."

Joop! challenged OHIM’s decisions before the Court of First Instance, which has also rejected the action.

"According to the Community Trade Mark Regulation, a trade mark which is devoid of distinctive character cannot, in principle, be registered. Such a mark may, however, be registered if it has become distinctive in relation to the goods or services for which registration is requested in consequence of the use which has been made of it," a summary of the decision stated.

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