Herinnering aan een woordmerk
Gerecht EU, 19 mei 2010, zaak T-108/09, Ravensburger AG, tegen OHIM / Educa Borras, SA
Gemeenschapsmerk. Geslaagde nietigheidsprocedure tegen het Gemeenschapswoordmerk MEMORY. “The word ‘memory’ describes directly and specifically one of the characteristics and purposes of the games for which the mark at issue was registered.” “Any operator (..) must be able freely to use the signs or indications which may serve to describe characteristics of its goods or services.”
31. It is not disputed in the present case that the goods for which the mark at issue was registered include, in particular, memory games, in which the key element for success is that the participants use and develop their memory well. It is therefore clear that the word ‘memory’ describes directly and specifically one of the characteristics and purposes of the games for which the mark at issue was registered.
32. In that regard, the Board of Appeal cannot be criticised for having relied on English language websites outside the European Union to conclude that the word ‘memory’ was descriptive for the purpose of Article 7(1)(c) of Regulation No 40/94 for the goods in question in the English-speaking countries of the European Union.
34. Finally, the applicant’s argument that the Board of Appeal did not take into account the situation prevailing in the European Union at the time of the registration of the mark at issue must be rejected, in that the word ‘memory’ was not, on that date, used to describe the goods in question.
35. For OHIM to refuse to register a trade mark on the basis of Article 7(1)(c) of Regulation No 40/94, it is not necessary that the signs and indications composing the mark that are referred to in that article actually be in use at the time of the application for registration in a way that is descriptive of goods or services such as those in relation to which the application is filed, or of characteristics of those goods or services. It is sufficient, as the wording of that provision itself indicates, that such signs and indications could be used for such purposes. A word sign must therefore be refused registration under that provision if at least one of its possible meanings designates a characteristic of the goods or services concerned (OHIM v Wrigley, paragraph 32).
36. Similarly, whether the number of competitors who may have an interest in using the signs or indications of which the mark consists is large or small is not decisive. Any operator at present offering, as well as any operator who might in the future offer, goods or services which compete with those in respect of which registration was sought must be able freely to use the signs or indications which may serve to describe characteristics of its goods or services (see, by analogy, Case C-363/99 Koninklijke KPN Nederland [2004] ECR I‑1619, paragraph 58).
37. The Board of Appeal therefore correctly found that the mark at issue was descriptive for the purposes of Article 7(1)(c) of Regulation No 40/94.
Lees het arrest hier.
