Chimsee: Case Analysis Of The Case Windsurfing Chiemsee

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As previously noted, registration may be dependent on the outcome of whether a mark has gained acquired distinctiveness and be capable of being registered.. The outcome will be assessed based on recognition amongst the relevant public and their ability to distinguish the mark from originating from a certain undertaking . The ECJ gave out guidelines in case Windsurfing Chiemsee, which can be used to define whether a color mark has been able to acquire the criterion of distinctiveness: “the market share held by the mark; how intensive, geographically widespread and long-standing use of the mark has been; the amount invested by the undertaking in promoting the mark; the proportion of the relevant class of persons who, because of the mark, identify …show more content…

Colors raise feelings and provoke emotions, but sometimes these connections are considered as being a result of a color possessing a feature of descriptiveness; bananas are yellow, therefore it may be viewed that the color yellow serves as a descriptive color of the …show more content…

Functional colors are perceived as descriptive colors, describing the function of the product, infringing Article 3(1)(b)and (c) of the Directive for instance. Descriptive colors also have a strong psychological effect as certain colors create associations which describe certain products or settings. For instance, green is classically associated with organic products and vegetation and therefore commonly used in the packaging of goods which sell such products . If a “common” green color per se, lacking a unique shade, would be granted trademark protection it would give grounds for a dominant position for an undertaking providing organic goods. In other words, colors describing the product or service itself shall be left available for all competitors within the market. Also, such colors would be denied registration due to lack of

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