Marques 2015: ‘Legal bias’ against colours and shapes must be overcome
A judge at the Federal Court of Justice in Germany has said European courts must overcome a “legal bias” against colours and shapes of trademarks as indicators of origin.
Judge Joachim Bornkamm was speaking today, September 16, at the Marques 29th Annual Conference in Vienna.
Bornkamm cited the Court of Justice of the European Union’s 2003 decision in the Henkel v OHIM dispute, in which the court said that “average consumers are not in the habit of making assumptions about the origin of products on the basis of their shape or the shape of their packaging”.
Bornkamm said courts rely too heavily on the use of word marks at the expense of the colour or shape of a trademark when assessing the indicator of the product’s origin.
“Shapes and colours are treated as a secondary category. It is a legal bias that has to be overcome,” he said.
Bornkamm also criticised rulings from European courts that deemed the purchasing of similar keywords as not interfering with the advertising function of a company’s trademark.
“If this does not interfere with the advertising function of a trademark, then what does?” he asked.
The Marques Annual Conference runs from September 15 to September 18.
