Companies distinguish themselves with a name or an original logo. And increasingly also with distinctive designs and packaging. The latter can be protected by a design registration. One of the quickest IP procedures is the European design registration whereas EUIPO only assesses the design application on formal requirements. One of the requirements is a clear image of the design. But what is a clear image? Is it a crystal clear photo of a design or are there also requirements on the subject on the photo?
This question has recently been answered by the ECJ. Mast-Jägermeister files a design of a cup. But the pictures reflect also a bottle. EUIPO rejects the application and asks for correct images. Mast-Jägermeister responds that the bottle is not a part of the design. EUIPO eventually rejects the design and Mast-Jägermeister appeals.
Now the Court of Justice gives us the answer on the question whether EUIPO can refuse images when there is a lack of precision, certainty or clarity regarding the matter to be protected by the design for which registration is sought. The answer is yes: EUIPO can. “Clarification is necessary not only for the purposes of ensuring legal certainty for third parties, who need to know precisely what the subject of the protection conferred on the design is, but also for accounting purposes, in so far as the amount of fees collected by EUIPO varies according to the number of classes of goods to which the design concerned relates.”
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“Trademark protection gives freedom to do business.”