Trade dress can be a very powerful form of protection, but only if a company understands how to gain and maintain it.
, this most recent decision from the General Court of the European Union, the court found that Louis Vuitton failed to proffer sufficient evidence to prevent its registration from becoming invalid.
Once a design is found to be entitled to trade dress protection, the brand can benefit from that protection forever, or to be a little more precise, as long as the trademark owner keeps on using the design in connection with its products. In 2000, the Supreme Court held that to claim trade dress rights, one must show that the consuming public has come to recognize the design as uniquely associated with one company – that the “primary significance” of the design is to identify the product as that of the source company.
In a prior decision, in June 2020, the General Court determined that the European Union Intellectual Property Office Second Board of Appeal correctly ruled that the checkboard pattern was not inherently distinctive. Louis Vuitton appealed the matter in an attempt to prove that the mark had instead acquired distinctiveness, therefore defeating a claim that the registration of the mark was invalid.
Although the court made a point to say that it would be unreasonable to require proof that a mark had acquired distinctiveness in each individual member state within the E.U.
The Board of Appeal found that this was only a “very small” number for the specified countries. In the present case, Louis Vuitton stated that this evidence is only a “selection” of invoices, and that the actual volume of sales to persons residing in the member states concerned is, in fact, higher.
Louis Vuitton did not submit information capable of demonstrating that a significant proportion of the relevant public in those member states was exposed to those advertising campaigns, concerning,the number of magazines distributed in those member states, the frequency and the times at which advertisements were broadcast on television or radio channels and statistics on the audience figures achieved.
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