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Despite obtaining an international registration from the International Bureau of the World Intellectual Property Organisation (”WIPO”) on the 4 November 2008 for those goods and services falling within Class 18 of the 'Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks', on the 25 June 2015, Mr. Norbert Wisniewski filed an application with the EUIPO for a declaration of invalidity. Although this decision was appealed by the Applicant, the Second Board of Appeal of the EUIPO dismissed the appeal on the basis that the pattern was inherently devoid of distinctive character and that the Applicant had not demonstrated that the pattern had acquired distinctive character through use, by decision of the 22 November 2018. Despite failing in its first attempt to protect the Damier Azur pattern, the Applicant launched an appeal before the General Court against the decision of the Second Board of Appeal on the 20 February 2019. The case was then remitted to the EUIPO's Fifth Board of Appeal, who were tasked with re-examining all the evidence submitted by the Applicant. However, the Applicant was yet again left disappointed, as the Board of Appeal decided once again that the Applicant had not demonstrated distinctive character acquired through the use of the contested mark. In launching another appeal before the General Court, this time against the Fifth Board of Appeal's decision, the Applicant sought to annul the contested decision by relying on Articles 59(2) and 7(3) of the Regulation on the basis that the Damier Azur pattern had acquired distinctiveness through use, and should hence be registered as an EU trade mark. As the General Court had previously ruled that the Board of Appeal was correct in finding that the contested mark lacked inherent distinctive character, the appeal was solely based on the pattern having acquired a distinctive character through the use which has been made of it. Horário: as melhores apostas online brasil 2023-09-24 15:13:51 - Local: 1m1. This is established amongst consumers through use and promotion of the product, rather than inherent distinctiveness, whereby a product has sufficient features to distinguish itself from other products on the market. The main reasoning behind this trend in decision-making adopted by the EUIPO, and supported by the higher courts, is that a designer cannot monopolize a particular design, which can be easily represented in a variety of ways; thus the acquired distinctiveness character criteria aims to counter this potential issue. The market-share held by the mark; The intensity, geographically widespread and long-standing use of the mark; The amount invested by the undertaking in promoting the mark; Statements from chambers of commerce and industry or other trade and professional associations; and Opinion polls. Although it was imperative for the Applicant to prove that the mark had acquired distinctiveness throughout the EU, the General Court noted that it would be ”unreasonable to require proof of such acquisition for each individual Member State. [and] the burden of proof imposed on the proprietor of the contested mark of demonstrating distinctive character acquired through the use of that mark must not be unreasonable.” Therefore, acquired distinctiveness should be proven through use throughout the territory of the EU.

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