First 10

Front 1

What is the absolute ground for refusal under section 3(1)(b)

Back 1

A mark will not be registered if it is devoid of distinctive character

Front 2

How is distinctive character assessed for s1(3)(b)what is the test called? what case is authority for the test? what is the actual test?

Back 2

The concrete test.Phillips v RemingtonThe mark is considered through the eyes of the of the consumer> Making an overall assessment of the mark and taking in to account the relavant circumstances does the person regard the sign as a trade mark ( as indicating origin)

Front 3

S3(3)(1)(B) applied the same, regardless of what mark it is? If that is the case, then why are some marks more likely to lack distinctness than others?

Back 3

The concrete test is applied the same regardless of the mark. The reason that some marks are more likely to lack distinctness than others is because the test is reliant on customer perceptionFor example, customers are less likely to percieve color scheme as indicating origin than a word or logo

Front 4

When is a sign INHERENTLY distinctive?

Back 4

the assessment of whether a sign has a distinctive character requires an examination as to whether the sign without reference to actual use, would enable the targeted public to distinguish the marked goods from those of other undertakings when making a purchasing choice

Front 5

what are the relavent factors in assessing whether a mark has acquired a distinctive character which case says this?

Back 5

Windsurfing Chiemsee

(SLIM PIG)Statements from chambers of commerce and industry

Longevity of use;

Intensity

;Market share;

Proportion of the relevant class of persons who identify goods and services as originating from that particular undertaking because of the mark;

Investment in promoting the mark;-

Geographical spread.

Front 6

what is the relationship between 'capable of distinguishing' in s.1(1) and 'devoid of distinction' in s3(1)(b)

Back 6

s1(1) is concerned with the potential of a sign to distinguish, when considered in abstract s1(3) is concerned with whether the sign ACTUALLY does so, either inherently or factually (per Phillip J in Philips Electronics v Remmington)

Front 7

Following from above, what does the ECJ in postkantoor say about s1(1) and s3(1)(b)

Back 7

court said that even though a sign has the potential to function as a trademark under s1(1), it must still be assessed 'concretely' under s3(1)(b)

Front 8

Is S3(3)(1)(B) applied the same, regardless of what mark it is? If that is the case, then why are some marks more likely to lack distinctness than others?

Back 8

The concrete test is applied the same regardless of the mark. The reason that some marks are more likely to lack distinctness than others is because the test is reliant on customer perception

Front 9

WHAT HAS THE COURT SAID ABOUT THE DIFFICULYTY OF ACHIEIVING DISTINCTIVENESS FOR THESE PURPOSES?

Back 9

Not that difficult in respect of some signs - it doesnt require any creativity or imagination (ECJ IN SAT.2)

Courts have indicated that only a minimal degree of distinctive character suffices for the absolute ground not to apply - Henkel KGA v OHIM

It seems to be a fairly easy test to satisfy -HOWEVER as mentioned before it will be more difficult in the case of non-standard marks as consumers tend to percieive non-standard marks as part of the product itself.

Front 10

ARE THE MARKS ASSESED AS A WHOLE, FOR THE PURPOSES OF DISTINCTIVENESS

Back 10

ARE THE MARKS ASSESED AS A WHOLE, FOR THE PURPOSES OF DISTINCTIVENESS