Eyes in the back-mark

In the landscape of trademarks you have the traditional brands: a word, a logo or a logo with word elements. Consumers are accustomed to these trademarks and will perceive these quickly as being a trademark. You also have the non-traditional trademarks like colours, 3D trademarks, packaging and sounds. Unusual trademarks and according to several decisions of European courts, not directly perceived as trademarks by the consumer. And therefore, non-traditional trademarks are more difficult to register. These trademarks must significantly differ from what exists in the market.

Often such non-traditional trademarks are rejected and often the only way to overcome such a refusal is to proof the gained distinctiveness through use. And this is a difficult task in case of an European trademark whereas evidence must be provided in many countries.

A position trademark is also a non-traditional trademark. The positioning of a sign is claimed. One of the best known position trademarks is the red tab of Levi’s. Position trademarks must be quite original too. For example, two ornaments on the back of clothing is not sufficient, according to EUIPO. The recent European application for this position trademark (left) was refused for clothes.

Arnaud Bos

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