Mark registered?
In Procter and Gamble Co. v OHIM, the question was whether the
word mark “BABY-DRY” could be a trade mark for baby nappies or
whether such a mark fell within Article 3(1)(c), descriptive.
According to the Court, the scope of Artcile 3(1) covers signs that
consumers might view as designating the goods, directly or by
reference to their essential characteristics.
If a word or combination of words is purely descriptive in one of the
language used in trade within the EU, the sign is unregistrable as a
CTM. Therefore, the Court assessed whether the sign was purely
descriptive, from the point of view of an English speaking
consumer.
Although the words on their own are descriptive, their “syntactically
unusual juxtaposition” transformed the sign into an expression that
was not descriptive directly of nappies or descriptive of the
essential characteristics of nappies. The Court held that “BABY-
DRY” was registrable, as it was a lexical invention that bestowed
distinctive power on the mark.
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