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Annual Review of EU Trademark Law 2014 in Review Guy Heath, Nabarro LLP London, United Kingdom with Georg Jahn, Noerr LLP Munich, Germany Anne Marie Verschuur, NautaDutilh Amsterdam, The Netherlands Jordi Güell, Curell Suñol Barcelona, Spain Pier Luigi Roncaglia, Studio Legale SIB Florence, Italy Meriem Loudiyi, INLEX Paris, France Alistair Payne, Matheson Dublin, Ireland Ivo Rungg, Binder Grösswang Vienna, Austria Nina Ringen, Rønne & Lundgren Copenhagen, Denmark Christian Sundén, Lindahl Stockholm, Sweden March–April, 2015 Vol. 105 No. 2 INTERNATIONAL TRADEMARK ASSOCIATION Powerful Network Powerful Brands 655 Third Avenue, New York, NY 10017-5646 Telephone: +1 (212) 768-9887 email: [email protected] Facsimile: +1 (212) 768-7796 OFFICERS OF THE ASSOCIATION J. SCOTT EVANS ..................................................................................................................... President RONALD VAN TUIJL ..........................................................................................................President Elect JOSEPH FERRETTI ........................................................................................................... Vice President TISH L. BERARD .............................................................................................................. Vice President DAVID LOSSIGNOL ................................................................................................................... Treasurer AYALA DEUTSCH ..................................................................................................................... Secretary DAVID FLEMING ......................................................................................................................... Counsel ETIENNE SANZ DE ACEDO ................................................................................... Chief Executive Officer The Trademark Reporter Committee EDITORIAL BOARD EDITOR-IN-CHIEF JONATHAN MOSKIN Senior Editors JESSICA ELLIOTT GLENN MITCHELL DANIEL C. GLAZER NEIL WILKOF KATHLEEN E. MCCARTHY RAFFI V. ZEROUNIAN Editor Staff Editor-in-Chief Senior Periodicals Editor BEVERLY HARRIS LISA BUTKIEWICZ JOEL L. BROMBERG Editors TSAN ABRAHAMSON ANDREW J. GRAY IV FABRIZIO MIAZZETTO HAKAN AKDAG JENNIFER LYNN GREGOR NANCY A. MILLER FEDERICO ALVARADO MASCHA GRUNDMANN JENNIFER MILLONES NIDHI ANAND GUY HEATH MANUEL MORANTE BRYAN BAER HANNA KARIN HELD CHIKAKO MORI MARIA BARATTA CHRISTINE HERNANDEZ MARIANO MUNICOY MARTIN J. BERAN ERIN HICKEY JOHN M. MURPHY DANIEL R. BERESKIN ANNE HIARING HOCKING PAUL MUSSELL STEFANIA BERGIA JANET L. HOFFMAN ROBERT M. O’CONNELL PETER BOLGER GANG HU HELENA WASSEN OESTROEM LANNING G. BRYER HENRY W. HUFFNAGLE JENIFER DEWOLF PAINE SHELDON BURSHTEIN DOMINIC HUI JEREMY B. PENNANT FILIPE FONTELES CABRAL SANDRA IRIARTE SCOTT D. PHILLIPS KATHERINE P. CALIFA PETER ISRAILOFF NEAL PLATT LEIGHTON CASSIDY E. DEBORAH JAY SUSAN RECTOR AI-TANG IRENE CHANG MARIA JOSE JIRON CINDY REICHELT PAMELA CHESTEK PAUL JONES ALEXANDRA ROBERTS SIMON CLARK SIEGRUN D. KANE DARREN W. SAUNDERS JANE F. COLLEN KOMAL KAUL MATTHEW R. SCHANTZ LAURENCE COLTON BISMAN KAUR MARTIN PETER SCHMIDT JOHN M. CONE LAURA KEES AARON SILVERSTEIN RUTH CORBIN SUSAN J. KERI GIULIO ENRICO SIRONI THEODORE H. DAVIS JR. ELIZABETH W. KING WENDI E. SLOANE ANNE DESMOUSSEAUX DARLENE S. KLINKSIECK JERRE SWANN JR. IGNACIO DOMINGUEZ ROLAND KUNZE PAUL TACKABERRY REX A. DONNELLY JOI MICHELLE LAKES OLIVIER TAILLIEU THOMAS F. DUNN ANN LAMPORT HAMMITTE CHRISTIAN THOMAS CLAUS M. ECKHARTT SCOTT LEBSON SCOTT THOMPSON KAREN L. ELBURG AURELIO HERNANDEZ LEHMANN CHITUA UZOH STEPHEN W. FEINGOLD CELIA LERMAN ANJALI VALSANGKAR ELISABETH KASZNAR FEKETE PAUL C. LLEWELLYN EDWARD E. VASSALLO GERALD L. FORD PILAR LOPEZ MATTHEW WALCH TARUN GANDHI MARCUS LUEPKE RITA WEEKS ALEXANDER J.A. GARCIA MARIE LUSSIER JORDAN S. WEINSTEIN ALEXANDRA GEORGE PAMELA MALLARI JOHN L. WELCH SANDRA GIBBONS J. DAVID MAYBERRY BRYAN K. WHEELOCK SZYMON GOGULSKI J. THOMAS MCCARTHY MEREDITH M. WILKES NEIL P. MELLISHIP Advisory Board MILES J. ALEXANDER ARTHUR J. GREENBAUM PASQUALE A. RAZZANO WILLIAM M. BORCHARD ROBERT M. KUNSTADT SUSAN REISS CLIFFORD W. BROWNING THEODORE C. MAX PIER LUIGI RONCAGLIA LANNING G. BRYER VINCENT N. PALLADINO HOWARD J. SHIRE SANDRA EDELMAN JOHN B. PEGRAM JERRE B. SWANN SR. ANTHONY L. FLETCHER ALLAN S. PILSON STEVEN M. WEINBERG ROBERT L. RASKOPF The views expressed in The Trademark Reporter are those of the individual authors. The Trademark Reporter (ISSN 0041-056X) is published electronically six times a year by the International Trademark Association, 655 Third Avenue, New York, NY 10017-5646 USA. INTA, the INTA logo, International Trademark Association, Powerful Network Powerful Brands, The Trademark Reporter, and inta.org are trademarks, service marks and/or registered trademarks of the International Trademark Association in the United States and certain other jurisdictions. The Trademark Reporter® (USPS 636-080) Copyright 2015, by the International Trademark Association All Rights Reserved Vol. 105 March–April, 2015 No. 2 TABLE OF CONTENTS ANNUAL REVIEW OF EU TRADEMARK LAW 2014 in Review I. Introduction ................................................................... 476 A. About this Review .................................................................. 476 B. Legislative Change ................................................................ 477 C. OHIM’s Convergence Programme ......................................... 477 D. Organization of Material in this Review ............................... 479 II. “Signs” Capable of Registration, Description of Mark, and Specification of Goods and Services ...................... 480 A. Introductory Comments ......................................................... 480 B. Legal Texts ............................................................................. 480 C. Cases ...................................................................................... 481 1. EU—CJEU—Presentation of trade premises—Is it possible to register the design and layout of a retail store as a trademark? ...................................................... 481 2. EU General Court—Does use of a dotted line in the representation of a trademark filed at OHIM indicate that it is being used to show the location, on some underlying surface, of the trademark being claimed? ..... 484 This issue of THE TRADEMARK REPORTER® (TMR) should be cited as 105 TMR ___ (2015). 3. EU—General Court—How should one interpret a “class heading” specification used for a CTM from before June 16, 2003? ....................................................... 485 4. EU—CJEU—Retail services—Can a mark be registered in relation to “the bringing together of a variety of services”? .......................................................... 488 III. Absolute Grounds for Refusal of Registration, and for Cancellation ............................................................. 492 A. Introductory Comments ......................................................... 492 B. Legal Texts ............................................................................. 493 C. Cases ...................................................................................... 495 1. Germany—German Federal Supreme Court— Descriptiveness/Non-distinctiveness—Does a mark with several descriptive meanings have the necessary distinctiveness? ................................................................ 495 2. Austria—Austrian Supreme Court—Can “Jimi Hendrix” be considered a trademark with distinctive character—and is this true for all descriptions of goods and services? .......................................................... 498 3. Italy—Supreme Court—Composite trademark—The protection of the word “Oro” (i.e., “Gold” in English) in the food industry—Does distinctiveness acquired through use of a composite trademark concern only the composite trademark as a whole or also each of its elements? ..................................................................... 499 4. EU—General Court—Should an applicant who invents a word to describe a method of physical exercise be granted trademark protection for that word? ................................................................................ 502 5. Germany—German Federal Supreme Court—Can an application for cancellation for lack of distinctiveness be successfully countered by the defense that, by use of the trademark for many years without objection, the trademark owner has acquired vested rights in the continuity of the registration? ................................... 503 6. Benelux—Brussels Court of Appeal, Belgium—Can the yellow color be registered as a Benelux trademark for telecommunication services if it is only used in a part of Belgium? ............................................................... 505 7. EU—CJEU—Color Marks—Can EU national laws impose a particular high threshold for public awareness as a condition to registration of an abstract color mark? ........................................................ 506 8. United Kingdom—English High Court—Are “hybrid findings” sufficient to deny registration to shape marks? .............................................................................. 509 9. EU—CJEU—When does a shape “give substantial value” to the products? ..................................................... 513 10. EU—General Court—When is a trademark to be considered indistinguishable from the product to which it is applied? .......................................................... 517 11. EU—General Court—Is
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