Trademark appeal court approves registration of Greek letter alpha

On 9th September 2010 the European Trademark Court of Appeal (First Chamber) found the following sign to be registrable for goods in Class 33.

On 14th September 2005 Borco-Marken-Import Matthiessen GmbH & Co KG filed an application to register a Community trademark consisting of the sign for goods in Class 33. The examiner refused the application, and a subsequent appeal was dismissed by the Office for Harmonisation in the Internal Market (Trademarks and Designs), as the sign was considered not to have distinctive character under Article 7(1)(b) of the EU Community Trademark Regulation (40/94).

By a judgment of 29th April 2009 the General Court annulled the contested decision and found the sign to be registrable. It added that a minimum degree of distinctiveness is sufficient to prevent application of the absolute grounds for refusal under Article 7(1)(b) of the regulation.

The court considered that when faced with a word mark consisting of a Greek letter in an up-to-date font and without any graphic element, the principles applicable to word marks, rather than those applied to design marks, should be used. There was no reason to believe, in regard to consumer perception of a mark consisting of a single letter, that such perception would be different to that of a mark comprised of two or more letters.

The court stated that according to Article 4 of the regulation:

marks may consist of letters, (and) it could not be assumed that, by definition, such marks lack distinctive character within the meaning of Art. 7(1)(b) of the Regulation, as otherwise Art. 4 would be rendered meaningless.

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