The General Court has decided that Louis Vuitton's Community trade mark for a chequerboard pattern should be cancelled, due to it being seen as a mere decorative feature and not as indicating the trade source of goods bearing it.
In an appeal before the General Court, Louis Vuitton recently attempted (unsuccessfully) to retain its Community trade mark registration for the following mark, for various goods in class 18, including bags, luggage, wallets and purses.
The registration was invalidated, based on the fact that the mark was inherently devoid of any distinctive character (i.e. it would not be seen as a trade mark, denoting the trade origin of goods bearing the mark). The mark represented a commonplace and everyday chequerboard pattern, of light and dark grey colours, with a weft and warp structure. It would be seen by average consumers of the goods as a mere decorative element of the goods. It would not serve to distinguish the trade origin of goods bearing the mark from those of others which have another trade origin.
Furthermore, the use in trade made by Louis Vuitton of the mark was not such as to result in the mark acquiring distinctive character (i.e. the mark had not, through use, come to be seen as a sign that distinguished the trade origin of goods bearing the mark from those of others which have another trade origin). The evidence submitted (of the use made of the mark) was not sufficient to demonstrate that, in each and every one of the Member States of the EU, a significant proportion of the relevant section of the public identified the class 18 goods in question as originating from one particular business, because of the use made of the mark.
The case demonstrates, yet again, just how difficult it is to obtain a valid Community trade mark for a mark that comprises the goods themselves for which registration is sought, or a 2-D representation of some pattern, or other detail, to be placed on part of, or to cover the whole of, the surface area of the goods. Being able to prove that, through use, such a mark has acquired distinctive character throughout the whole of the EU will, in most cases, prove be an incredibly expensive (and, evidentially, almost impossible) hurdle to overcome.
