Case No. IP-2015-000146

75.Thirdly, it was a necessary part of Mr Hicks’ argument that by August 2013 Mr Rigopoulos may have persuaded some relevant persons that ‘Sivec’, when used in relation to marble, designated that the marble came from a single undertaking, but that he had not persuaded all of them. As will be seen, I accept Mr Hicks’ account to the extent that I have come to the view that as of August 2013 use of the Trade Mark by Mermeren had led some relevant persons in the real world to think that it meant the place from which the marble was quarried; others had moved on to think that it meant marble quarried and/or supplied by Mermeren. There was probably a third group of relevant persons who gave the matter no thought beyond ‘Sivec’ being a type of marble. The question was: how does trade mark law deal with the frequently messy reality of what relevant persons believe?76.I therefore asked Mr Hicks what the tipping point was: what proportion of relevant persons had to have been converted to the perception Sivec marble came only from Mermeren in order that pursuant to art.7(3) the Trade Mark overcame the prohibition under art.7(1)(c)? Mr Hicks submitted that the matter should be approached the other way around: if a significant proportion of the relevant persons believed, in August 2013, that ‘Sivec’ denoted a geographical origin when used in relation to marble, that was sufficient for the Trade Mark to have been invalidly registered. Miss Himsworth was equivocal.77.For the reasons discussed above, I do not accept Mr Hicks’ submission. In line with what was said by the Court of Justice in Windsurfing, if it was shown that in August 2013 at least a significant proportion of relevant persons perceived that the Trade Mark, when used in relation to marble, identified it as originating from a single undertaking, the Trade Mark was validly registered pursuant to art.7(3). As earlier indicated, I take a significant proportion to mean markedly above de minimis but not necessarily over half.