Exclamation mark blow to clothes company

An exclamation mark cannot be registered as an EU trade mark, judges ruled today.

The European ruling is a blow to JOOP!, the German clothing and perfume company which applied to register the symbol of an exclamation mark, both on its own, and inside a rectangle.

The Office for Harmonisation in the Internal Market – the EU’s trade mark office – said such a sign lacked “distinctive character”.

JOOP! appealed, but today the European Court of First Instance in Luxembourg also threw out the request, confirming that the symbol was “devoid of distinctive character” – a failing on the part of the exclamation mark which rules out its registration under EU law.

The judges said even a symbol lacking distinctive character could possibly be registered as a trade mark if it became associated with the goods or services marketed by the company.

But, the judges decided, JOOP! failed to show that the exclamation mark had acquired such distinction through the company’s existing use of it in branding across Europe.

The judges said the public would see the exclamation mark as used by JOOP! “as mere laudatory advertising, or as an eye-catching gimmick”.

The ruling said a sign such as the exclamation mark could function as a trade mark “only if it may be perceived immediately as an indication of the commercial origin of the goods or services in question, so as to enable the relevant public to distinguish, without any possibility of confusion, the goods or services of the owner of the mark from those of a different commercial origin”.

But even consumers “having a high degree of attention” could not draw conclusions about the origin of the goods by relying on a mere exclamation mark.

Even an exclamation mark in a rectangular frame could not be considered distinctive enough, said the judges, though that would give the exclamation mark the appearance of a label.

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