De combinatie van een acroniem, een symbool en een woord
GvEA, 24 september 2008, zaak T-248/05, HUP Uslugi Polska sp. z o.o., formerly HP Temporärpersonalgesellschaft mbH tegen OHIM / Manpower Inc. (Nederlandse versie nog niet beschikbaar).
Gemeenschapsmerk. Mislukte nietigheidsprocedure tegen I.T.@MANPOWER. Het begrip emailadres komt 1 keer in de uitspraak voor, bij de stellingen van de eisende partij. Merk is niet misleidend, beschrijvend en beschikt over onderscheidend vermogen.
“43. The combination of an acronym, a symbol and a word is not the usual way of designating goods or services. Furthermore, the intervener’s mark, which consists of such a combination of three different elements, cannot, viewed as a whole, be regarded as a known English expression designating the goods or services in question or referring to one of their characteristics.
44. Moreover, even if some of the relevant consumers could perceive the intervener’s mark as conveying the meaning of ‘information technology at Manpower’, that would suggest that the mark refers to an entity called Manpower and therefore performs the essential function of a trade mark which is to provide identification of commercial origin. Alternatively, even if some of the relevant consumers could perceive that mark as conveying the meaning of ‘information technology in the workforce’ – which would, however, require the intervener’s mark to be analysed in a certain way – that mark cannot be perceived as a descriptive indication of the goods or services in question or of one of their characteristics in the everyday language of the relevant public. The message conveyed by the intervener’s mark is not sufficiently clear and direct for it to be considered to be descriptive of the goods or services in question.”
(…) 52. Secondly, the Board of Appeal did not err in stating that the intervener’s mark has a minimum degree of distinctiveness (paragraph 17 of the contested decision).
54. (…) it is an original and uncommon combination owing, in particular, to the insertion of the symbol ‘@’ between ‘it’ and ‘manpower’. It is not common to have a word mark consisting of an acronym, a symbol and a word. (…)
(…) 67. (…) Contrary to the applicant’s claim, the intervener’s mark does not convey a clear message concerning the goods and services in question or their characteristics but, at the very most, hints at them.
68. In particular, the intervener’s mark cannot be understood as being equivalent to ‘manpower in the sector of information technology’. Although it may call to mind, to a certain extent, something connected with information technology and a workforce, it is not a designation which is sufficiently specific to be capable of giving rise to actual deceit or a sufficiently serious risk that the consumer will be deceived.
69. Furthermore, consumers are, in any event, able to assess directly, when choosing the goods or services in question, whether they relate to information technology or are connected with a workforce. They are not therefore generally characteristics to which a serious risk of deceit may apply.
70 . It follows from all of the above that the fourth part of the applicant’s plea and, therefore, the single plea in law must be rejected, and accordingly, the action in its entirety dismissed.”
Lees het arrest hier.
