Intellectual Property – Trade Mark Infringement – Figurative Community Trademark

By Rosanna Cooper

In the case of Sportwetten GmbH Gera v the Office for Harmonisation in the Internal Market (“OHIM”) (2005), it was held that the registration of a Community trade mark was not contrary to public policy or public morality.

On 11 January 1999, OHIM published a figurative mark incorporating the word INTERTOPS in respect of Class 42: bookmakers and betting services of all kinds.

Sportwetten GmbH was the proprietor of the trade mark INTERTOPS SPORTWETTEN, registered in Germany in respect of the same types of services.

On 17 May 1999, Sportwetten lodged an application for a declaration of invalidity concerning the INTERTOPS registration. The application was rejected by OHIM and Sportwetten appealed to the Court of First Instance.

Sportwetten contended that:

▪ registration infringed Article 51 of Regulation No 40/94 read together with Article 7 (1) (f) and (2) because the proprietor was not licensed to offer or advertise in Germany the services in respect of which the mark had been registered; and ▪ the INTERTOPS trade mark was contrary to public policy or to accepted principles in Germany and other Member States.

The Court of First Instance dismissed the appeal and confirmed that:

▪ it is the trade mark itself, not the circumstances relating to the conduct of the person applying for registration, that is to be assessed in order to determine whether the mark is contrary to public policy or accepted standards of morality for the purpose of Article 7; ▪ consequently the fact that the INTERTOPS proprietor was prohibited from offering betting services in Germany did not have the effect of rendering the trade mark itself contrary to public policy or principles of morality; and ▪ therefore there was no grounds for which the decision should be annulled and therefore the application for a declaration of invalidity was denied.

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