Whether actual knowledge of a geographical place is necessary under art.7(3)
73.The second assumption contained within Mr Hicks’ argument was that use of a real place name in association with a type of marble can generate the perception that the name designates a geographical origin even if the average consumer has never heard of the name qua geographical location – i.e. even if the average consumer just assumes that it is somewhere on the map but does not know this to be true.74.In my view the average consumer could acquire a relevant perception in that way. When it comes to the consequences of the use of a sign, it is the perception of the average consumer generated by that use that counts, not the reality, see Oldenburger at [43] and paragraph 1(iv) of the ruling in Windsurfer referred to above. According to Mr Hicks’ account of what happened, perception coincided with reality. I think that reality was by the way; perception was what mattered.
- HIS HONOUR JUDGE HACON
- Defendant
- Introduction
- The issues
- The law
- Whether use of the mark can be taken into account
- perception that arises in consequence of the use of the mark as a trade mark and thus as a result of the nature and effect of it, which make it capable of distinguishing the product concerned from those of other undertakings
- The necessary territorial extent of acquired distinctive character
- Summary of the law
- A significant proportion of the relevant class of persons
- The average consumer in the present case
- Acquired distinctive character under art.7(3)
- Use of the Trade Mark
- Whether actual knowledge of a geographical place is necessary under art.7(3)
- The messy reality of what relevant persons think
- The evidence
- Mr Mitchell
- Mr Charles
- Mr Rigopoulos
- Mr Malfas
- Summary
- August 2013 to March 2016
- Conclusion