The following case review of T53/13 first appeared in the ITMA review.

Background

Vans applied to register the mark in question (see right) in Classes 18 and 25 on 14 September 2011 (No. 010263838), which was refused on 7 March 2012 on the basis of Article 7(1)(b) as the mark “consisted of a wavy line which slants and curves” and was devoid of distinctive character. Evidence to show acquired distinctiveness had a number of gaps such that it was held not to be possible to ascertain the degree of recognition by the relevant public.

The appeal filed on 2 May 2012 was dismissed by the Fifth Board of Appeal (BoA) on 14 November 2012. The BoA held that the mark was devoid of any distinctive character as the average consumer would see the mark as a “concept of a wavy line”, which is too vague as a badge of origin. Graphic line stripes are common in respect of goods in Classes 18 and 25, such that the relevant public would view the mark as “exclusively ornamental”. Also, the existence of earlier national registrations was irrelevant and evidence regarding acquired distinctiveness insufficient.

The action to the General Court (Fifth Chamber) was filed on 31 January 2013. (more…)