A Unopen Hold Back At Survey Methodology For Proof Of Acquired Distinctiveness

The grounds for the High German Federal Court of Justice's earlier postal service on the decision. Essentially, Banco Santander applied for a proclamation 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 together with ultimately unsuccessful before the Bundesgerichtshof, which confirmed the validity of the mark. The instance 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 entirely highlight a few points inwards the following. The conclusion volition travel the reference instance 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 attempt that, at the relevant date, a pregnant proportion of the relevant shape of persons perceives the relevant goods or services every moment originating from a item undertaking because of the sign inwards question" (there at para. 57) together with considered the survey testify submitted past times Nestlé, structurally rattling like to the testify before the Federal Court of Justice, to travel inadequate to reply this question. Since the briefs are non on populace tape inwards Germany, it is unclear whether the nullity plaintiff fifty-fifty raised the issue. In whatsoever case, High German Courts create non look to travel inclined to follow Arnold J's Pb (for a critical accept on the KitKat decision, come across my recent slice inwards ABA's Landslide Magazine).