the Commission applied Article 82 EC correctly in taking the view that the submission to the patent offices of objectively misleading representations by an undertaking in a dominant position which are of such a nature as to lead those offices to grant it SPCs to which it is not entitled or to which it is entitled for a shorter period, thus resulting in a restriction or elimination of competition, constituted an abuse of that position. The question whether those representations were objectively misleading must be assessed in the light of the specific circumstances and context of each individual case.
IPPT20100622, GCEU, Shenzhen v BHIM
Made available to the public at trade fair and specialised press: Informed user - no technical expert: With regard to the interpretation of the concept of informed user, the status of ‘user’ implies that the person concerned uses the product in which the design is incorporated, in accordance with the purpose for which that product is intended. However, contrary to what the applicant claims, that factor does not imply that the informed user is able to distinguish, beyond the experience gained by using the product concerned, the aspects of the appearance of the product which are dictated by the product’s technical function from those which are arbitrary
IPPT20100615, GCEU, X Technology Swiss v OHIM
Inherently distinctive character unsubstantiated: there is nothing to suggest that any commercial success of the applicant would have been due to the fact that the orange colouring of the toes of the socks which it manufactures would have been perceived by the relevant public as being inherently distinctive.
2009 - COURT OF FIRST INSTANCE
IPPT20090429, CFI, Borco-Marken v OHIM
Letters as such – without graphical ornamentations– can have distinctive character.
Concrete examination of distinctive character required. Need of availability of signs does not preclude the need of examination of capability to identify as originating from a particular undertaking
Opposition: Evidence of genuine use earlier trademark: The Board of Appeal referred, in particular, to advertisements showing images of Budvar beer bearing the mark BUDWEISER, to invoices sent to customers in Germany and Austria and to the fact that those advertisements and invoices related to the relevant period. Stated reasons for obvious similarities beer and malted non-alcoholic beverages
Lack of urgency interim measures
Lego trademark invalid: Essential characteristics of shape consisting exclusively of intended technical result, even if that result can be achieved by other shapes using the same or another technical solution. The essential characteristics of a shape must be determined objectively, on the basis of its graphic representation and any descriptions filed at the time of the application for the trade mark perception consumer is not relevant.
IPPT20060913, CFI, MIP Metro v OHIM – Tesco Stores
Purpose relatieve grounds and apposition. Two angels: The possibility of such a conflict must be consid-ered from two different angles. with regard to the substantive scope of the abovementioned provi-sions, the earlier mark and the mark applied for must be identical or similar, as must the goods or services des-ignated by those marks, so that confusion may arise between the two signs. Concerning the temporal scope of those provi-sions, both those marks must co-exist for a certain period. OHIM may request the opponent to submit facts, evidence and argument.
Opponent free to choose evidence. OHIM may not assume essential facts relating to the protection of earlier marks