La fotografia di un mitragliatore per giochi on line basati su armi da fuoco non è distintivo e quindi nemmeno registrabile.
Ne dà notizia Alessandro Cerri su IPKat.
Questo il marchio:
La decisione è esatta ma anche facile. Il marchio possiede distintività vicina allo zero (nemmeno un minimo tentativo di personalizzare -“originalizzare” o meglio “distintivizzare”, verrebbe da dire- l’immmagine dell’arma), nè rileva il fatto che si applichi a vendite di servizi on line invece che beni fisici.
Quasi invisibile la componente denominativa.
L’unico passaggio interessante è il rapporto con la privativa da disegno/modello. Per l’ufficio, esso è nullo: quantunque questa presupponga “carattere individuale”, il giudizio di distintività sul marchio è da essa autonomo.
<<55 In the present case, the mark applied for constitutes a banal representation of the object which is the essence of the goods and services claimed and, therefore, merely informs the relevant public in the territory of the European Union of the nature of the goods and services at issue in Classes 9, 35 and 41, namely that they are virtual goods in the form of firearms or online entertainment, sporting or cultural services aimed at virtual firearms. The application in that figurative version does not provide the consumer public in the territory of the European Union with any additional original information.
56 The relevant consumer public will therefore not be in a position to determine the commercial source of those goods and services when it sees the mark applied for in relation to the goods and services in question in Classes 9, 35 and 41. In addition, the application contains completely non-distinctive (‘MADE IN CZECH REPUBLIC’) and small-sized, miniature (‘CZ BREN 2’) word elements which cannot in any way influence its absence of distinctive character and avert the perception of the relevant public from a completely common representation of a firearm which has no distinctive character in relation to all the goods and services defined above, or which could create a lasting impression of the mark.
57 The applicant stated that the application deviates significantly from the norm or customs in the sectors concerned and this is apparent, for example, from evidence No 1-8 submitted by the applicant at first instance (see observations of 23 May 2022). In that regard, the Board of Appeal finds, first of all, that the evidence supporting the secondary declaration of acquired distinctive character of the application cannot be taken into account in the present appeal proceedings, since the Board of Appeal deals exclusively with the question of inherent distinctiveness, which always precedes the possible application of Article 7(3) EUTMR. However, the Board of Appeal analysed the referenced Annex 1-8 in the form of an extract from Wikipedia, articles from various periodicals and photographs of firearms and indicated that they did not in any way reveal, either individually or in relation to each other, that the application was sufficiently distinctive or that it departed significantly from norms or customs in the sector concerned – those documents do not in any way support the applicant’s assertion that the figurative element of the firearm reproduced in the application was complex. That evidence does not in any way follow from that evidence.
58 As regards the applicant’s argument that the exceptional shape and general appearance of the application is supported by the fact that CZ BREN 2 is also registered as a Community design and therefore has individual character, the requirement of individual character being similar to that of a trade mark, the Board of Appeal rejects it as wholly unfounded. The existing Community design No 4409852-0001 cannot have any direct effect on the distinctive character of the trade mark application in relation to the goods and services in Classes 9, 35 and 41. The trade mark must have the capacity to distinguish unequivocally the goods and services of a given undertaking from those of another undertaking, irrespective of whether or not a related design is registered.
59 A design and a trade mark are two distinct types of industrial property rights governed by different laws and having different criteria or conditions for registration. The use of the argument that a design is registered and has individual character cannot have a direct effect on the distinctive character of the mark. That criterion applies exclusively and individually to the trade mark application referred to above, notwithstanding its similar representation with that design>>.