The Board of Appeal has invalidated the Examiner decision in Case R 443/2010-2 by deciding to grant registration to the movement mark represented below which was filed in respect of large specification of products and services in classes 9, 38 and 41.
The Board opined that the representation was appropriate and clear and that, read in conjunction with the textual description, the movement happening in the mark was not difficult to understand for a reasonably observant person with normal levels of perception and intelligence without expending a huge amount of intellectual energy and imagination (this is the test indeed!). The applicant actually supported his trademark by providing to the Board a flipbook showing the movement of the trademark at hands. Interestingly, the Board also took into account other accepted movement marks (namely CTMs No. 8 207 532 and 8 553 133) especially as the amount of this type of mark is still rather limited.
Once again, the OHIM is one step forward! Movement marks definitively are a new option to be considered in trademarks strategy with amongst conditions to have a specific and thoughtful description supporting the representation of the sign.