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VOGUE and descriptiveness

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10/11/2016

The EU General Court has ruled on whether the figurative mark, VOGUE, registered as an EU trade mark in respect of various beauty and baby care products in Class 3 was descriptive [1].

The Court upheld the conclusion of the EU Intellectual Property Office that the mark was not descriptive of the goods for either the average English or French-speaking consumer. “Vogue”, according to the Court, means “popularity, use or general acceptance” and “en vogue” (or “in vogue”) means “fashionable, tendency”.  There was nothing in that definition that was descriptive of an essential characteristic or characteristics of the goods subject to the mark.

The Court also considered that the mark was not devoid of distinctive character for the relevant goods.

The Court rejected a further challenge to the mark based on bad faith, the allegation being that the proprietor of the mark had sought to register the mark in various Member States without any intention of using the mark. In dismissing this argument, the Court made the point that submitting an application for unitary protection as an EU trade mark beyond national registrations was not of itself an act of bad faith.

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[1] Case T-453/15, Trinity Haircare v EUIPO

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