Some cases are mouthwatering, especially with a French baguette and lightly salted butter. Andro is the producer of Bonne-Maman, a trademark for jam that is well-known for his pattern of squares on her products.

The Spanish Dulces Y Conservas Helios S.A. filed a European 3D trademark with the same squares (in blue). In order to prevent risk of confusion Andro filed an opposition against this trademark.

In the event of non-traditional trademarks you see more often that such claims have to be backed up by evidence of the reputation of the mark claimed. The problem in this case was that this evidence of the reputation was received by the Ohim two days outside the time limit. The opposition was therefore rejected as the Opposition Division found these trademarks to have a weak distinctiveness and sufficiently different (the documentation was not consulted).

Andro filed an appeal and the Board of Appeal now rules that even if parties have no unconditional right to the acceptance of evidences submitted out of the time given by the Office Art. 76, 2 CTMR confers upon the Office a discretion to as whether accept of refuse such evidences.

According to the Board of Appeal, the Office should have used this discretion as the evidence of enhanced distinctiveness of the trademark of the opponent was clearly highly relevant for the outcome of the case. As the material was bulky and contained material in colors and the opponent diligently announced the delivery which had arrived before the deadline the Board is of the opinion that the circumstances reasonably explained why the attachments arrived two days too late.

The Opposition Division will now have a new look in this opposition case, they will certainly think that nothing beats the stickiness of jam, except this case.

Source: Ohim

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Arnaud Bos

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