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15 Cards in this Set
- Front
- Back
What are the cases for this absolute ground? |
Windsurfing Chiemsee Baby dry Double mint |
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what is the policy reasoning for this absolute ground? |
b/c they do not indicate origin |
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is descriptive terms bar so that descriptive terms can not not be monopolised, |
no babydry - AG JACOB - |
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what is the examples AG JACOBS gave in Baby Dry for the restrictions on descriptive terms |
just as the owner of the VITTEL trade mark cannot prohibit another producer from stating in good faith that its water is bottled at Vittel, nor could Procter & Gamble prevent a rival from claiming that its diapers “keep your baby dry”. |
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what was the key issue in baby dry |
key issue in baby-dry was whether the fact that a proposed mark consisting only of descriptiveterms in the proposed mark would negate its distinctive character. |
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what was the key question in baby dry |
the case turned on whether therelevant consumers would be likely to perceive the word combination as merelydescribing the intended function of the relevant products or whether they wouldnevertheless be likely to perceive it as a trade mark, albeit one havingdescriptive significance as well |
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what is the test in baby dry |
is there any perceptible difference between, expressions in normal language which consumers would perceive as designating the relevant goods or their essential characteristics or their intended purpose would be enough to overcome the descriptive terms bar |
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why did the ECJ allow registration in baby-dry |
the word combination “baby-dry” in relation todiapers is in fact a “syntactically unusual juxtaposition” of descriptivewords.49 Thiscombination, considered in the round, is not a familiarexpression in the English language either for designating babies' nappies orfor describing their essential characteristics. |
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according to baby dry is it relevent that each individual word is descriptive? |
no. |
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how did babydry reconcile with the earlier judgement of windsurfing chiemsee |
court said Windsurfing should be viewed as |
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what was the retreat from baby-dry in double-mint |
in baby-drythe court held that the mark was only offending if the description was anormalway of describing the relavent matter – in doublemint the ecj set the test HIGHER if the word at issue was capable of being usedby other economic oporators to designate a characteristic of their goods andservices then it should not be registered |
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Postkantoor - what was the descriptive term |
postkantoor for paper and other services(meaning post-office in dutch) |
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what was the higher bar set in POSTKANTOOR |
> did not matterwhether the characteristics which the mark described were essentialcharacteristics of the goods – the public interests in the descriptive termbar means that signs which describe anycharacteristic should be kept available |
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WHICH CASE WAS DECIDED ONE WEEK AFTER POSTKANTOOR AND CHOSE TO IGNORE ITS JUDGEMENT |
Zapf Creation v OHIM (new born baby) - delivered one week afterpostkantoor, AG Jacobs preffered to ask whether the mark described the “essential characterisitics” of the goods. |
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summarise the different approaches to the question of descriptive terms |
Baby dry - applicant leniant approach services Postkantoor - signs which describeany characteristic should be kept available Zapf Creation - does the mark describe the “essentialcharacterisitics” of the goods. |