EU General Court holds wavy line not distinctive for fashion items

The EU General Court has agreed with an OHIM Board of Appeal that a single wavy line (see image) was devoid of distinctive character in relation to goods in class 18 such as leather bags and walking sticks, and in class 25 (headgear, footwear and clothing).

The applicant had contended that OHIM should have examined inherent distinctiveness separately for four distinct sub-categories of the goods, but the court disagreed, finding that all the goods were used by consumers to convey a particular image, and were therefore all fashion items that formed a homogenous group. It was, therefore, permissible for OHIM to apply the same general reasoning to all the goods. The court also held that the sign had no striking element capable of attracting the consumer’s attention. Furthermore, single lines and stripes were commonly used as a decorative motif for fashion items, making the relevant public even less likely to perceive the sign as an indication of trade origin.

The court rejected the applicant’s claim that its evidence had adequately demonstrated distinctiveness acquired through use, saying that the evidence was insufficient as it had shown sales volumes, but not how the relevant public perceived the sign. It also dismissed a ground of appeal relating to the existence of earlier Community registrations of the sign, finding that none of the earlier rights covered the same ground as the current application.

Case: Vans Inc v OHIM, Case T-53/13, 6 November 2014 (Curia).