On November 19, 2009, the European Court of First Instance rejected from registration Community trademark applications for the numerals 150, 250, 350, 222, 333 and 555 (for “periodicals, books, games brochures” in class 16), the numeral 1000 (for “brochures, periodicals containing crossword puzzles and rebus puzzles, newspapers” in class 16) as well as the word and device trademarks containing the digits 100 and 300 (covering “posters, albums, booklets, magazines, forms, printed matter, newspapers, calendars, crosswords puzzles, rebuses” in class 16 and products and services of classes 28 and 41).
The Court found that there was a direct and specific link between 150, 250, 350, 222, 333, 555 and 1000 and the characteristics of the goods claimed in class 16 such as their number of pages and works, amount of data, number of puzzles in the collection or ranking of items referred to in them. For 1000, the Court more specially pointed out that brochures, periodicals and magazines preferred round numbers for indicating the content and this strengthened the descriptive relationship between the goods at hands and this figure for the average consumer.
The designs involved with the digits marks for 100 and 300 were confirmed as reaching a too low level of development. The overall impression emerging from these signs could have been given that the exclusive rights extended to the elements 100 and 300 prevented other undertaking from using them.
These decisions are in line with past decision of the Third Board of Appeal for the plain numeral “7” which started it all. The level to reach to give rise to a sufficient distinctiveness allowing registration requires the designs or other fanciful features added to the digit to be of sufficient consistence and/or visual impact to properly counterbalance and hide the sole presence of a numeral.