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ARTICLE · 24 OCTOBER 2001

ECJ: Three Strikes and You´re In!

Gevers & Partners
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BelgiumIntellectual Property

Article by Florent Gevers and Jean Pire

In a September 20, 2001 ground-breaking decision, an application by Procter & Gamble for the diaper trademark BABY-DRY succeeded at the European Court of Justice (ECJ) level after its application was rejected by the prior three levels: the Examination Division of the Office for Harmonization of the Internal Market (OHIM), the Board of Appeal of OHIM, and the Court of First Instance in Luxembourg.

In all three instances the mark was refused on the basis of its lack of distinctiveness (Article 7.1(b)(c) of the E.U. Regulation on Trade Marks).

Following the opinion of Advocate General Jacobs the reasoning of the court can probably be best summarized in paragraph 43 of the judgment: "Whilst each of the two words in the combination may form part of expressions used in everyday speech to designate the function of babies' nappies, their syntactically unusual juxtaposition is not a familiar expression in the English language, either for designating

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