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The case of Antartica Srl v Workplace for Harmonisation within the Inner Market (Commerce Marks and Designs) (OHIM) (Case T-47/06) [2007] concerned points referring to the ‘chance of confusion’ as regards to a European Neighborhood commerce mark. On the thirtieth of March 2000, the applicant firm, Antarctica Srl, submitted an utility to register a Neighborhood Commerce Mark (CTM) on the Workplace for Harmonisation within the Inner Market (Commerce Marks and Designs) (OHIM).

The applying was made below Council Regulation (EC) 40/94 (on the Neighborhood commerce mark) to register a figurative mark containing the phrase NASDAQ as a CTM. The products for which registration was sought fell inside lessons 9, 12, 14, 25 and 28 of the Good Settlement regarding the Worldwide Classification of Items and Providers for the Objective of the Registration of Marks of the fifteenth of June 1957 as amended.

On the twenty seventh of April 2001, the NASDAQ Inventory Market Inc introduced opposition proceedings in opposition to the registration of the mark utilized for in respect of all the products referred to within the utility for registration. The opposition was made on the grounds outlined in Article 8(1)(b) and eight(5) of Regulation 40/94.

The Opposition Division of OHIM rejected the opposition. The opposition was rejected on the grounds that there was no ‘chance of confusion’ throughout the which means of Article 8(1)(b) of Regulation 40/94. As well as, the popularity of the sooner mark in Europe had not been correctly substantiated. Subsequently, on the twenty fourth of August 2004, the intervener introduced an enchantment earlier than OHIM in opposition to the Opposition Division’s determination.

By a call of the seventh of December 2005, (“the Contested Determination” on this case), the Second Board of Attraction of OHIM put aside the Opposition Division’s determination on the bottom that the latter had wrongly rejected the opposition by basing its determination on the truth that the situations for the applying of Article 8(5) of Regulation 40/94 had not been fulfilled.

For its half, the Board of Attraction held that the popularity of the commerce mark NASDAQ within the European Union for the companies in lessons 35 and 36 for which it had been registered had been substantiated, and that the applicant’s use of the mark NASDAQ with out due trigger would take unfair benefit of, or be detrimental to, the distinctive character and popularity of the sooner mark. For these causes the Board of Attraction upheld the opposition.

The applicant firm sought an enchantment. It claimed that the Courtroom of First Occasion ought to annul the contested determination. It alleged a single plea of infringement of Article 8(5) of Regulation 40/94 in help of its motion for annulment of the Contested Determination.

The Courtroom thought-about the proof, and took account of the similarity of the marks at problem, in addition to the significance of the popularity and the extremely distinctive character of the commerce mark NASDAQ. It was held that the intervener had established the existence of a future danger, which was not hypothetical, of unfair benefit being drawn by the applicant by way of the mark utilized for, from the popularity of the commerce mark NASDAQ.

In consequence, there was subsequently no must put aside the Contested Determination on that time. The applicant had not been capable of put ahead one convincing motive to warrant the conclusion that its use of the commerce mark NASDAQ can be based on due trigger throughout the which means of Article 8(5) of Regulation 40/94. In these circumstances the Board of Attraction had been proper to conclude that there had been no due trigger for the applicant’s use of the signal NASDAQ. The only plea alleging infringement of Article 8(5) of Regulation 40/94 needed to be rejected along with the applying in its entirety.

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Go to http://www.rtcoopersiplaw.com or http://www.rtcoopers.com/practice_intellectualproperty.php

© RT COOPERS, 2007. This Briefing Observe doesn’t present a complete or full assertion of the legislation referring to the problems mentioned nor does it represent authorized recommendation. It’s meant solely to focus on common points. Specialist authorized recommendation ought to at all times be sought in relation to specific circumstances.

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