LIVE is not ALIVE

In order to be registered as a trademark, a trademark must be available and must be distinctive. In some cases, the descriptiveness of a trademark is obvious, in other cases it is not a clear call. Sometimes a trademark consists of two words which creates a non-existent combination. This could give you the impression that the trademark is distinctive. However, the sole argument that a trademark is a new word is not sufficient for acceptance. The new word must be distinctive in its entirety.

For example, the application LIVE PHOTOS of Apple is, according to Apple, a new and non-existent word. With this function your iPhone takes a few photos and this creates a short video. The EUIPO however rejected the application. The trademark consists of the generic word photos and the adjective LIVE (which says something about the photos).

Apple appealed this refusal but without success. According to the Board of Appeal, it immediately becomes clear that LIVE PHOTOS concerns animated photographs. Also the argument that the trademark has now become distinctive through use, is rejected: the EUIPO sees no proof of acquired distinctiveness in the documents supplied by Apple.

Arnaud Bos

“Trademark protection gives freedom to do business.”

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