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Court of Justice clarifies the test for assessing distinctive character (AS v Deutsches Patent- und Markenamt)

Published on: 12 September 2019
Published by: LexisPSL
  • Court of Justice clarifies the test for assessing distinctive character (AS v Deutsches Patent- und Markenamt)
  • What are the practical implications of this case?
  • What was the background?
  • What did the court decide?
  • Case details

Article summary

IP analysis: In response to a request for a preliminary ruling from the Federal Court of Germany, the Court of Justice has ruled that Article 3(1)(b) of Directive 2008/95/EC must be interpreted as meaning that in examining the distinctive character of a sign in respect of which registration as a trade mark is sought, all the relevant facts and circumstances must be taken into account, including all the likely types of use of the mark applied for. The latter correspond, in the absence of other indications, to the types of use which, in the light of the customs in the economic sector concerned, can be practically significant. This is good news for right holders as it means that the courts will take a relatively broad approach when assessing distinctive character, and will not be confined to the most likely use of the mark within a particular sector. or take a trial to read the full analysis.

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