The danger of stylising your word mark

The proprietor owned the trademark CATWALK registered since 1995 for use in relation to articles of footwear, clothing and headgear. In 2010, an application was filed to revoke this word mark on grounds of non-use.

In its use evidence, it was open to the proprietor to rely on use of the trademark CATWALK ‘in a form differing in elements that do not alter the distinctive character of the mark in the form in which it was registered’.

This issue was recently considered by the Court of Justice of the European Union in the PROTI case and also in the ONEL case, in which it held that there is ‘genuine use’ of a trademark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered. When assessing this, regard must be had to all the facts and circumstances to establish whether there is real commercial exploitation of the mark in the course of trade. Relevant factors include the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark…

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