Top ten trade mark and passing off cases in the first ten months of 2019

Document No: PUB 20A/19 Posted: 20 January 2020

The cases fall into five themes: Colours and shapes, bad faith, targeting, parallel imports and cybersquatting.

Colours and shapes

Red Bull GmbH (supported by Marques) v EUIPO, Optimum Mark sp. z o.o.
(CJEU; C-124/18; 29.07.19)

The CJEU held that the combination of two colours was insufficiently clear and precise to be registered as a trade mark under Article 4 of Regulation 207/2009, despite the fact that the marks had been registered on the basis of acquired distinctiveness through use.

Optimum applied to invalidate two of Red Bull’s marks. Both marks claimed protection for the colours blue and silver, the first in a ratio of “approx­imately 50%-50%” and the second “in equal proportion and juxtaposed to each other”.

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