Can you register the famous Night Watch (the whole painting) of Rembrandt van Rijn as a trademark? No, the Benelux Trademarks Office ruled in 2015 that this trademark is too complicated to act as a trademark. Moreover, this painting will not be seen as a trademark and therefore lacks any distinctive character.
Recently the Benelux office had to judge about the Night Watch again, but now about the name Nachtwacht (Dutch for Night Watch). Against the application of the logo (left), a Belgian company De Nachtwacht, active in the field of mattresses, filed an opposition on the basis of its wordmark DE NACHTWACHT, registered for mattresses, blankets and the sale thereof. The opposition was directed against the application of Studio 100 for products such as furniture and blankets.
The use requirements applied to the mark on which the opposition was based. Studio 100 therefore requested proof of use which as filed and assessed by the Benelux Office. While the Benelux office took the view that no evidence was filed for the products, use was proofed of the trademark for selling of mattresses etc. Since these services are similar to most products in the contested classes, De Nachtwacht is successful in its opposition.
The lesson learned is that often the company name is the same as the name of the product. And while sometimes everybody is focused on the registration of the trademark for products, the application in especially class 35 is very important.
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