Voorbije Perfecte

GvEA, 23 oktober 2008, zaak T-133/06, TIM The International Music Company AG &TTV Tonträger-Vertrieb-2000 GmbH tegen OHIM / Past Perfect Ltd (Nederlandse vertaling nog niet beschikbaar)

Nietigheidsprocedure tegen Gemeenschapswoordmerk  PAST PERFECT (muziekopnamen). Merk is niet beschrijvend, begrip is te vaag.

“35. In that regard, it must be held that the meaning of the intervener’s mark for those consumers is too vague to be descriptive of the goods concerned, the time of production or, more specifically, the specific content of the musical recordings such as ‘classical music’ or ‘pre-19th Century music’. In other words, the mark at the very most evokes or alludes to a ‘golden’ era, but does not refer immediately to the music recorded or any other audio materials covered by the mark at issue such as audio books.

36. Furthermore, having regard to the vague nature of that expression, it does not appear that it may constitute the usual way of designating the goods concerned or one of their essential characteristics for the purpose of the case-law cited in paragraphs 24 and 30 above. Nor have the applicants shown that ‘past perfect’ or even ‘past perfect music’ constitutes or may constitute an impression of classical music or of non-contemporary music or of other audio materials.

37. Therefore, the Board of Appeal rightly held that the intervener’s mark was not descriptive with respect to consumers who do not understand its grammatical sense.

38. In the second place, as regards consumers who understand the grammatical meaning, the applicants challenge the Board of Appeal’s findings, in paragraph 17 of the contested decision, that, first, neither the relevant consumers in the United Kingdom and Ireland nor those living in other Member States and who are familiar with English can be regarded as being familiar with English grammatical terminology and, second, the expression ‘past perfect’ will not be understood as referring to a particular tense of English grammar by persons other than those with a relatively high level of education or who have specialist knowledge.

39. In that connection, it must be held that, even assuming that the words ‘past perfect’ could be recognised by a substantial part of the target public as an English grammatical tense designating the pluperfect, it does not for that reason follow that the intervener’s mark would be understood by that public as being descriptive of the goods concerned.

40. The public will not consider the relationship between the mark and the goods concerned as being sufficiently direct and specific, within the meaning of the case-law cited in paragraph 25 above, the term ‘past perfect’ not immediately referring to recorded music or to any other goods covered, or to the time of production of the sound recordings protected, as the applicants claim.

Lees het arrest hier.