A Unopen Await At Survey Methodology For Proof Of Acquired Distinctiveness

The grounds for the High German Federal Court of Justice's earlier post service on the decision. Essentially, Banco Santander applied for a announcement of invalidity for lack of (acquired) distinctiveness of Sparkassen's coloring mark, was unsuccessful before the High German IPO, successful before the Federal Patent Court in addition to ultimately unsuccessful before the Bundesgerichtshof, which confirmed the validity of the mark. The illustration led to a referral to the CJEU, which was answered inwards the joined cases summary past times Birgit Clark on IPKat).

Given the length of the decision, I tin dismiss solely highlight a few points inwards the following. The determination volition survive the reference illustration for the blueprint of consumer surveys for proof of acquired distinctiveness for years to come.

The IPKat post) held that "the applicant or merchandise score proprietor must essay that, at the relevant date, a meaning proportion of the relevant shape of persons perceives the relevant goods or services every mo originating from a item undertaking because of the sign inwards question" (there at para. 57) in addition to considered the survey prove submitted past times Nestlé, structurally rattling like to the prove before the Federal Court of Justice, to survive inadequate to reply this question. Since the briefs are non on world tape inwards Germany, it is unclear whether the nullity plaintiff fifty-fifty raised the issue. In whatever case, High German Courts produce non appear to survive inclined to follow Arnold J's Pb (for a critical direct keep on the KitKat decision, come across my recent slice inwards ABA's Landslide Magazine).