Fhima, Ilanah;
(2022)
What is a significant departure from the norm? Assessing the inherent distinctiveness of 3D shape marks.
Journal of Intellectual Property Law & Practice
, Article jpac101. 10.1093/jiplp/jpac101.
(In press).
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Abstract
This article considers the implementation of Article 7(1)(b) of Regulation 2017/1001 European Trade Mark Regulation (EUTMR) as it applies to shape marks. The Court of Justice of the European Union (CJEU) has stated that for a product shape to be inherently distinctive, it must depart significantly from the norm in the sector concerned. The CJEU has never explained the ‘norms test’ nor how it should be applied in practice. This article critiques the norms test and examines how it is being implemented by the European Union Intellectual Property Office—relying upon internet searches to identify the sector ‘norm’ and then comparing this to the mark in question—and suggests how this practice could be improved.
| Type: | Article |
|---|---|
| Title: | What is a significant departure from the norm? Assessing the inherent distinctiveness of 3D shape marks |
| DOI: | 10.1093/jiplp/jpac101 |
| Publisher version: | https://doi.org/10.1093/jiplp/jpac101 |
| Language: | English |
| Additional information: | This version is the author accepted manuscript. For information on re-use, please refer to the publisher’s terms and conditions. |
| UCL classification: | UCL UCL > Provost and Vice Provost Offices > UCL SLASH UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws |
| URI: | https://discovery.ucl.ac.uk/id/eprint/10162129 |
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