EGC: Wave of Vans is not registrable

The EGC (European General Court) decided that a wavy line is not distinctive for Vans and not registrable as a Community Trademark (Judgment dated 6 November 2014; Case No.: T-53/13). Background of the Case and Subject Matter In September 2011 the American shoe manufacturer – VANS Inc. – filed an application for Community Trademark No. 008543183 at the Office for Harmonization in the Internal Market (OHIM) for the following word/device mark for - among others - clothing: Decision of the Court Both OHIM and the EGC rejected its registrability. First of all, the court argued that the wavy line is not sufficiently distinctive to be recognized by the general public as an indication of the origin of the product. In that regard, the court determined that, the goods covered by the mark applied for were aimed at the general public, which would pay an average degree of attention to them at the time of purchase. Furthermore, it noticed that that public would not meticulously analyze the characteristics of the mark applied for, but would recall only the concept of a wavy line, which is too vague to identify the goods as coming from a certain producer. Finally, the court pointed out that lines and stripes are commonly used within the clothing industry. Therefore, the relevant public may well take the view that the wavy line is simply an ornamental pattern and not a indication of origin. Secondly, the court found that the fact that the mark applied for had already been registered in certain Member States was irrelevant. The Community Trademark system is autonomous and, in addition to that, the Board of Appeal is not bound by previous or erroneous decisions made by OHIM, since each case must be assessed on its own merits. Finally, the applicant was not able to prove that the wavy line has such a high reputation in the European Union be able to claim acquired distinctiveness in order to get the trademark registerd. The applicant just submitted as evidence (intended to prove the distinctiveness acquired through use of the trademark applied for) an affidavit of its Vice President of Events, Promotions which shows that the sign applied for has been used since 1977. The various documents submitted were not sufficient in order to prove the sign in question was perceived by the relevant public as an indication of the commercial origin for the goods in question throughout the European Union.