Global wind turbine manufacturer, Enercon, fails to register EU trade marks due to lack of distinctiveness.
Enercon is one of the largest wind turbine manufacturers in the world. Over time, it has tried to register various EU trade marks:
- a shape consisting of an American football-shaped wind turbine
- a word consisting solely of the letter E for various products relating to the generation of energy in the form of electricity
- most recently, a colour mark composed of five different shades of the simple and popular primary colour green, and white for wind energy converters.
All three of these applications have had problems because of a lack of distinctive character. For a trade mark to have distinctive character it must serve to identify the product concerned as originating from a particular undertaking. This is assessed in relation to the goods and in relation to the perception which the relevant public has of it.
In its judgement early in May this year, the Court of First Instance found that the contested colour mark conveyed an aesthetic message, ecological in nature, but did not indicate the commercial origin of the goods.
Importantly, the court found that given that wind energy converters are high value capital goods, the specialist consumers who constitute the relevant public will neither identify nor purchase such equipment because of its decoration or external presentation but by reference to precise and accurate technical information about it. Enercon, as a result of the lack of distinctiveness, did not get its registration.