MarkMatters.com came across some remarkable European and Benelux trademark applications: banknotes! To be more precise South African banknotes of 10, 20, 50, 100 and 200 Rand. The trademark applications were filed by the South African Reserve Bank for various products and services such as jewelery, printed works and financial services. The applications concern the three dimensional form of the banknote (in the EU, in the Benelux the marks were filed as device marks).
Is a banknote a valid trademark? In order to answer this question we have to have a better look whether these applications are indeed 3D marks. As a banknote is two dimensional, the applications seem mainly intended to protect the image and not the form of the banknote. So, let’s stick with the two dimensional device mark.
As we all know, a mark must be distinctive. A lack of distinctiveness occurs mainly with word marks, device marks include most of the times figurative elements that enrich a mark with distinctive character. Having said that we however anticipate some problems with the applications of the South African bank, no consumer will perceive a banknote as a trademark. Therefore, a whole banknote will not have any distinctive character. It will be interesting to see whether the European and Benelux Trademark Office shares this view.
The last question is why the South African Reserve Bank would want to claim these marks. In order to attack counterfeiters on trademark infringement? That seems unlikely. To be able to act against other abuse? Could be, however, any use of the banknotes for for example a scratch pad or a chocolate bar will probably not be use as a trademark and otherwise the Opel / Autec decision of the ECJ (regarding the use of the Opel trademark on miniature cars) will be an obstacle. Acting against this use on the basis of a mark will therefore be difficult at the end.
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