A Community Trade Mark application for a figurative mark described as "pattern 'Vichy' red and white", registered for "milk and milk products" in class 29, has been declared invalid on appeal on the basis that it is devoid of any distinctive character.
The mark had been registered and the invalidity action brought by competitor Grupo Lactalis Iberia SA, was initially rejected. However, the decision rejecting the invalidity action was later annulled on appeal and the mark declared invalid.
Trade marks must be distinctive in order that they can be identified against marks of competitors. The mark in question could have been deemed valid if it contained such identifiable elements could enable a repetitive pattern to become identifiable. In this case, the mark was a graphical representation of the widely known Vichy pattern of white and red interlaced tiles similar to a Gingham check. It is a repetitive pattern and did not contain elements which would enable it to be identified in comparison to other representations of the same pattern, and the mark had not developed distinctiveness through use therefore the registration was invalid.in: News, Trade Marks