EUIPO took a decision in case № № R 1515/2016-2 which concerns invalidation of the following EU trademark registered for Class 25 “clothing; footwear; headgear“.Shoe Branding Europe BVBA sought to invalidate the mark based on Article 52(1)(a) in conjunction with Article 7(1)(b) EUTMR, lack of distinctiveness.
EUIPO upheld this request stating that as it is presented this three-striped mark was likely to go unnoticed by most consumers, taking into account that these three stripes could be used as decoration for the particular goods specified in the application.
Adidas submitted 12 000 pages with pieces of evidence that the mark was distinctive enough to serve as a trade origin sign.
EUIPO dismissed these materials as insufficient and not precise. For instance, EUIPO considered that the submitted examples showing the real use of the sign are different from the way in which it is registered because they show two black stripes only.
The submitted surveys did not serve to establish acquired distinctiveness either because indicated a connection with other Adidas marks without assessing the separate distinctiveness of the three stripes figurative mark alone.
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