Numerals under the trademark practice

Both the French trademark law and the Community trademark Regulations provide that numerals are eligible to trademark protection. We are often questioned by our clients as to what the situation really is. So we hereby propose to make a short review of the practice relating thereto.

Obtaining registration of a numeral is a harder task before the OHIM than before the French trademarks Office. The OHIM keeps on applying the same position it had retained years ago about the CTM for “7”, when ruling that a plain numeral alone without any unusual or fanciful feature, was deprived of any distinctive character and was not capable of distinguishing the goods and services of an applicant from those of other undertakings.

On the other hand, you will remember for instance that the numeral “2” went through the French examination stage and was published in the Official gazette. The position is not different for longer numerals (“2009” for instance). Only the association of numerals to letters and preferably to words and/or logotype is proper to overcome an official action from the OHIM.

When it comes to assessing a likelihood of confusion, the French and Community Courts concur in ruling a limited scope of protection for such marks. Their owner can only act against identical or almost identical signs.
The French position however seems here to be stricter than the OHIM. The marks “SIX4” and “64” have for instance been considered as dissimilar on December 20, 2007 by the Toulouse Court of Appeal. The Paris Court of Appeal also ruled on November 12, 2008, that the owner of the mark “86” could not prevent the trade of clothing bearing that numeral under a fancy form. In its turn, on October 22, 2008, the OHIM ruled a likelihood of confusion between “19-70” and “1971”.

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