Top or flop?

Talpa is the company of John de Mol, creator of many international television formats such as The Voice and Big Brother.  Recently Talpa was involved in an opposition procedure with the BBC relating to the program Top of the Tops. This music chart has been broadcasted since the sixties. Talpa wanted to register the trademark Top of the Flops. BBC opposed this trademark.

The Ohim has now issued a decision in this opposition Will it be Pop of Flop? Well, the BBC wins, Pop prevails.

The decision has some remarkable arguments. Like in other recent decisions in oppositions based on European trademarks, the relevant public is the European customer. In order to avoid costly analysis of each the public in each separate country Ohim chooses several countries such as Poland and the Czech Republic. Why these? The Ohim does not tell us. Normally, Ohim chooses Estonia as this public has no knowledge at all of English. This results in sometimes strange decisions where obviously descriptive English words in trademarks can be claimed after all. But here, the Ohim takes a more realistic look and takes a certain knowledge of English into account.

The Ohim is of the opinion that the words “Top of” are somewhat descriptive with the part of the relevant public that understands English. Nevertheless, these words have some distinctive character and as since the marks are similar, there is a likelihood of confusion. It is rather strange that according to the Ohim the public will not see any difference in the meaning Top of Flop.

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Arnaud Bos

“Trademark protection gives freedom to do business.”



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