Thursday, 6 October 2011

Trademark Registration of Shapes which give Substantial Value to the Product

The IPKat has reported an interesting General Court of the EU decision in an appeal of Bang & Olufson against an OHIM decision.

The procedure dealt with the question whether or not the shape of the loud-speaker should not be registered because it "gives a substantial value to the goods" in the sense of Article 7(1)(e) of Regulation No 40/94.

The press release says:
In the Court’s view, that design is an essential element of Bang & Olufsen’s branding and increases the value of the product concerned. Furthermore, it is apparent from extracts from distributors’ websites and on-line auction or second-hand websites that the aesthetic characteristics of that shape are emphasised first and that the shape is perceived as a kind of pure, slender, timeless sculpture for music reproduction, which makes it an important selling point.

Whilst I perfecly agree with this judgement, this appears to be in conflict with an
older decision of the BGH on a BMW radiator cowling, wherein

the BGH argues with regard to §3(2)Nr.3 MarkenG that this exception applies where the aestethic shape of the goods is considered the actual "tradable value", whereas it does not apply in cases where the shape/design is only an "ingredient" of the good, which has other functions besides of beeing beautiful.

I think that the fact that the B&O loudspeaker has other functions besides of beeing beautifulcannot be reasonably constested.

My impression is that the court was led by the empirical fact that every boy in Germany can tell the brand of a car by looking at a radiator cowling, which is not the case for loudspeakers. Given this, it is surprising that the BGH has finally rejected the BMW cowling as being "devoid of any distinctive character". Apparently, BMW had not conducted a poll.

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