Informacyjny charakter oznaczenia jako przeszkoda rejestracji wspólnotowego znaku towarowego

Abstrakt

This commentary concerns one of the most practical issues in the Communitytrademark system. First of all, it highlights the general rules for the evaluation of themark’s descriptiveness applied by OHIM and EU courts. Besides the territorial andtemporal aspects of that evaluation and view of the relevant customer, the appropriateapproach is accentuated with regard to the “direct and specific relationship” betweenthe mark and the goods or services that it represents. It is precisely that relationshipwhich provides the necessary condition for its descriptiveness. Secondly, thecommentary characterizes the different categories of descriptive trademarks. It canbe derived from extensive EU case-law that not only wordedmarksmay reasonably bequalified as descriptive. Such a qualification is also possible with regard to graphical,three-dimensional, combined and even non-conventional imagery. Thirdly, thecommentary addresses the problems concerning acquired distinctiveness. It is notedthat some inherently descriptive signs may never acquire distinctiveness throughuse due to the specific circumstances involved. Generally the commentary providespractical guidelines for the evaluation of a mark’s distinctiveness, which may beuseful also in the field of Polish trade mark law.