Cuarta Cámara de Recursos, se expidió en relación con la solicitud de marca comunitaria para la expresión Oktoberfest, solicitada por la ciudad de Munich, para una serie de clases.
La solicitud fue rechazada por el Examinador correspondiente de la EUIPO. La solicitante apela y la Cámara de Recursos, coincidiendo con los argumentos del Examinador, rechaza también el registro.
“DECISION of the Fourth Board of Appeal of 26 August 2020
In Case R 1840/2019-4
State Capital City of Munich Burgstr. 4 80331 Munich Germany Applicant/Appellant
represented by LORENZ SEIDLER GOSSEL Rechtsanwälte Patentanwälte Partnerschaft mbB, Widenmayerstr. 23, 80538 Munich, Germany
Appeal relating to European Union trade mark application No 15 535 008 issues
THE FOURTH BOARD OF APPEAL composed of D. Schennen (Chairperson and Rapporteur), C. Bartos (Member) and E. Fink (Member) Registrar: H. Dijkema”
Los antecedentes se encuentran en este link:
https://euipo.europa.eu/eSearchCLW/#basic/*///number/1840%2F2019-4
Oktoberfest es una expresión bastante utilizada... no solamente en Munich...
“Several objections were raised, some as a result of comments by third parties. The observations referred to a large number of the Oktoberfest which takes place in and also outside Germany, a total of 2054 (third-party observations of 22/08/2016, p. 3, and Annex S & J 1, 2 in this respect), including the following: Oktoberfest on the Bodensee, Frankfurter Oktoberfest, Otoberfest, the French Oktoberfest, Esperanto Oktoberfest Fulda, Mülheimer Oktoberfest, Oktoberfest, the Oktoberfest, the Oktoberfest, the Oktoberfest, the Oktoberfest, the Oktoberfest, the Oktoberfest, the Oktoberfest, the Oktoberfest, the Oktoberfest, the Oktoberfest, the Oktoberfest, the Oktoberfest, the Oktoberfest, the Oktoberfest, the Oktoberfest, the Oktoberfest in Strausberg ”
Dice el Tribunal:
“26 The fact that the applicant is the people who are probably the largest in the world of the world is irrelevant in the context of Article 7 (1) EUTMR. First, the statement that it is the largest Oktoberfest that there must also be smaller, see the previous paragraph. Secondly, trademark protection cannot be claimed in relation to the business idea for the use of a beer festival in October. Thirdly, the sign applied for contains no reference whatsoever to the city of Munich. According to the representation of the sign applied for, the term thus designated may take place anywhere (for example on television, see 14/03/2008, R 670/2005-2, spring festival deer with volksmusics). Thirdly, strict between the inherent distinctive character of a sign on the basis of the supposed perception of the relevant public and the distinctiveness in consequence of use as a consequence of use of the applicant’s own use; the latter is only to be assessed in the context of Article 7 (3) EUTMR. The same applies to tradition have been asserted by the applicant a long tradition: Article 7 (3) EUTMR requires that the sign applied for be already used by the applicant before the filing date as a European Union trade mark (in this case June 2016). For the purposes of the examination of Article 7 (1) EUTMR, however, account is to be taken of the situation relating to the application date and not of the ‘absolutely first use’, that is to say the claimed a long tradition. In any case, the contested decision failed to substantiate the refusal pursuant to Article 7 (1) EUTMR with the applicant’s own use of the sign; this was correct. ”
Destacamos también estos dos párrafos de la extensa Decisión.
“101 It is established that there are other people’s fixed objects in Germany, but also in Austria, which are described as ‘Oktoberfest’ and with which the applicant has no connection. This includes the Oktoberfest, in Vienna. The empirical evidence that consumers will nevertheless assume — contrary to objective facts — the public festivals in Austria were also those in respect of which the state capital, Munich, was responsible, has not been successful. The question of whether there is a local people’s festival with the designation ‘Oktoberfest’ by a particular organiser is pointless. For consumers in Austria wishing to visit a local public living in Austria, it is pointless to see that there is a people’s festival in Munich also. Who will attend the Oktoberfest in Munich and know that he is found in Munich and whether or not he would also visit Vienna Oktoberfest or think about the organiser of the Oktoberfest is meaningless.
102 The applicant’s conclusion that it could not actually be the case that such an event, like the Munich Oktoberfest free-ried free-riding attorney, was open to protection, could be answered therewith. If one is aware of a free-rider someone who wishes to market any article as souvenir items under the contested designation, in order to make use of the attractiveness of the designation, however, the applicant is protected — the merchandising articles which do not relate to people’s festivals) are hereby allowed to proceed to publication pursuant to Article 7 (1) EUTMR. If someone wishes to market someone who wishes to market beer, beer, sausages and their like, the applicant has not claimed his own use in respect of the goods which have been refused. As regards ‘beer’, the European Union trade mark ‘OKTOBERFEST-BIER’ was registered in favour of the association Münchener Brauereien e.V. in 2000. The designation ‘Münchner Oktoberfest’ is open to protection, because it was never applied for as a European Union trade mark. The applicant does not want to seriously prohibit this since those who organise ‘Oktoberfest’ in Austria. It has not even claimed to have indemnified prohibitory injunction against such Austrian residents or licence fees. However, this legal basis would constitute the consequence of a registration as a European Union trade mark pursuant to Article 7 (3) EUTMR with unitary effect, not only in respect of Germany, but also in respect of Austria and all the other (25) Member States of the EU.”
Acabo de mirar en la base pública de marcas de Uruguay y sí tiene registros... no de la ciudad de Munich...
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