New step for “numerals” as trademarks?

We previously reported the decision of the European Court of First Instance which on November 19, 2009, denied registration to a couple of Community trademark applications for the numerals 150, 250, 350, 222, 333 and 555 (for “periodicals, books, games brochures” in class 16), 1000 (for “brochures, periodicals containing crossword puzzles and rebus puzzles, newspapers” in class 16) as well as  to 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).

Well, the Court of Justice has now given its words last Thursday (March 16) by dismissing the appeal for the numeral 1000. The Court confirmed the descriptive relationship with the products claimed by finding that “1000” on a publication could be perceived as an indication that it contains 1000 cross words puzzle. The Court laid down the test to apply: it is first necessary to ensure that one or more characteristics of the goods at hands will remain freely used by the undertakings of theses goods and secondly that the quantity indicated by the numeral characterises the goods claimed in the mind of the relevant class of person.

This decision is in line with the Community case law but the test in two steps to go through leaves some room left for more flexibility. We are however still amazed to observe the strict route taken for numerals while single letters seem to have a more favourable treatment (see the letter W case below).

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