The General Court (GC) has dismissed an appeal against a ruling of the Board of Appeal (BoA) that a sign consisting of a single wavy line was not distinctive in relation to fashion items.

Vans' simple wavy line

On 14 September 2011 Vans applied for registration of a Community trade mark (CTM) for a simple wavy line as shown:

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The scope of the application

Vans had applied for goods such as leather bags and walking sticks, clothing, headgear and footwear. It argued that OHIM failed to examine the inherent distinctiveness of the mark independently for the distinct sub-categories of the goods.

The GC disagreed. It held that all of the goods were used by consumers to convey a particular image, and were therefore all fashion items that formed a homogenous group. OHIM was, according to the GC, therefore correct in applying the same general reasoning to all of the goods.

The inherent distinctiveness of the mark

Further, the GC held that the wavy line had no striking element capable of attracting the consumer's attention and that single lines and stripes were commonly used as a decorative motif for fashion items, making the relevant public even less likely to perceive the sign as an indication of trade origin.

The line, according to the GC, had a purely ornamental function: "It must be pointed out that the mark applied for consists of a line which slants and curves and that it does not have any striking element capable of attracting the consumer's attention."

No weight given to earlier marks

The GC was also dismissive of the applicant's claim that earlier accepted national or Community trade marks were relevant for the purposes of reaching a consistent conclusion, finding that each case must be assessed on its own merits.

Evidence of acquired distinctive character

The GC also refused to accept that Vans' evidence had adequately demonstrated distinctiveness acquired through use, upholding the earlier BoA decision which maintained OHIM's position.

The evidence was not able to show that the relevant public in the EU (or at least a substantial part of it) perceived Vans as being the trade origin of the goods.

The outcome

The GC agreed with the BoA that the single wavy line lacked the necessary distinctive character in relation to goods in classes 18 and 25. Vans simply failed to push their case over the line.

In short

  • Simple marks can certainly create effective brands (consider the world recognised Nike "swoosh" for example) but obtaining protection for such marks is often far from straightforward.
  • Proving that a simple mark has acquired distinctive character through the extensive use made of it is one way of overcoming the distinctiveness objection.
  • Courts will want to see evidence that the mark has indeed satisfied the primary function of a trade mark, that is, to indicate the origin of the goods applied for.

Case details at a glance

  • Jurisdiction: European Union
  • Court: General Court
  • Parties: Vans Inc v OHIM
  • Citation: T-53/13
  • Date: 06 November 2014
  • Full decision: http://dycip.com/vans1114