capacità distintiva – Pagina 3

Ancora sul giudizio di confondibilità tra marchio denominativo e successivo marchio complessio (figurativo-denominativo)

Il Trib. UE 12.10.2022, T-222/21, Shopify c. EUIPO, interv. Rossi e altri, decide sul se l’anteriorità del marchio denominativo SHOPIFY impedisca la registrazione del seguente

La sentenza rieprcorre il solito iter logico per il giudizio di confondibilità e conferma la decisione di reclamo amminstrativo per cui non c’è confonbililità.-

Tra i punti più interessanti:

— The relevant public for the assessment of the likelihood of confusion is composed of users likely to use both the goods or services covered by the earlier mark and those covered by the contested mark. Thus, as a general rule, where the wording of the goods or services of one mark is wider than the wording of the other, the relevant public is generally defined by the narrower wording (see judgment of 24 May 2011, ancotel v OHIM – Acotel (ancotel.), T‑408/09, not published, EU:T:2011:241, paragraphs 38 and 39 and the case-law cited), § 23.

— Assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components. It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element. That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public retain, with the result that all the other components are negligible in the overall impression created by that mark (judgments of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraphs 41 and 42, and of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraphs 42 and 43). § 40.

41 In the present case, before assessing the similarity of the signs at issue, it is necessary to examine the distinctive and dominant elements of those signs.

– gli elementi descrittivi non son dominanti nella impressione complessiva, § 45.

— “shop” è dominante? è IL punto centralE: il Trib. dice di no :

49 In the second place, it is necessary to examine, in the light of the case-law cited in paragraph 40 above, whether or not the element ‘shop’ has a dominant role in the marks at issue.

50 So far as concerns the earlier mark, the other word component of it is the suffix ‘ify’, which, for the English-speaking public, will evoke the concept of transformation, and thus, together with the word ‘shop’, that of ‘making something become a shop’. Therefore, it is without committing an error of assessment that the Board of Appeal could find that the earlier mark, taken as a whole, was highly allusive to the goods and services aimed at creating e-commerce platforms or shopping sites that it designated for the English-speaking public. By contrast, for the non-English-speaking public, the suffix ‘ify’ has no meaning and therefore has an average distinctive character. In both cases, that additional element ‘ify’ is not negligible, within the meaning of the case-law cited in paragraph 40 above, in the earlier mark, and the element ‘shop’, which is moreover descriptive, cannot be regarded as dominant in that mark, contrary to what the applicant claims.

— bassa distinvitità del marchio anteriore, §§ 82/86

— SHOPIFY non ha acwuisito una particlare distinvitità col tempo, § 87 ss

— infine sul giudizio finale: in the present case, the Board of Appeal considered, in essence, that, despite the identity or similarity of the goods and services concerned, given the descriptive nature of the element common to the two marks at issue, namely ‘shop’, the attention of the relevant public focused on the differentiating elements, in particular, on the ‘ify’ and ‘pi’ endings of the two signs, meaning that the coincidence between the signs resulting from the presence of the said common element was not decisive and that the similarity was weak overall. Furthermore, in view of the high level of attention for professionals and higher than average level of attention for the general public as well as the weak distinctive character of the earlier mark, there was no likelihood of confusion., § 121

e poi

Moreover, as the Board of Appeal pointed out in paragraph 93 of the contested decision, although, in accordance with the case-law of the Court of Justice, the more distinctive the earlier mark, the greater will be the likelihood of confusion, the opposite is also true. With regard to a trade mark with a weak distinctive character, and which thus has a lesser capacity to identify the goods or services for which it has been registered as coming from a particular undertaking, the degree of similarity between the signs should, in principle, be high to justify a likelihood of confusion, or this would risk granting excessive protection to that trade mark and its proprietor (see, to that effect, judgment of 5 October 2020, NATURANOVE, T‑602/19, not published, EU:T:2020:463, paragraph 56)., § 125

Tre marchi di Philip Morris (due figurativi e uno denominativo) giudicati nulli per carenza di distintività

Si considerino i seguenti due marchi figurativi

per sigarette , tabacco e simili.

In via amminstrativa e poi giudiziaria (Trib. UE 5 ottobre 2022, Case T‑502/21, Philip Morris Products SA c. EUIPO nonchè Trib. UE Case T‑501/21, pari data e parti) sono stati giudicati privi di distintività ex art. 7.1.6 reg. 2017 n. 1001.

Potrebbe apparire sorprendente, essendo le immagini non banali e tenendo conto del basso livello di distintività di solito richiesto.

Pensa al contrario il Trib. (riporto la motivazione solo di T‑502/21 ma è simile all’altra):

<< 19 In the present case, it should be noted that the mark applied for represets a combination of black lines, some of which form an angle.

20 In that regard, first, it must be held that, given their simplicity, none of those black lines, taken individually, is likely to present aspects or communicate a message, which would be easily and instantly memorised by the relevant public, which, moreover, the applicant does not suggest.

21 Second, the applicant does indeed submit that, taken together, the black lines making up the mark applied for create, first, a contrasted effect and, second, an illusion of an ‘outer boundary line’ and an illusion of movement forwards. The applicant adds that the perception of that mark would be altered by the angle it is viewed from by the relevant public.

22 However, first of all, it should be noted that the contrasted effect alleged by the applicant results solely from the fact that the mark applied for is in black and white. Such a combination of colours is commonplace, with the result that it cannot, by itself, confer on that mark a characteristic likely to be perceived by the relevant public as an indication of the origin of the goods at issue.

23 Next, even if the mark applied for were capable of creating an illusion of movement or a boundary line, it must be pointed out that such an illusion is perceptible only after a detailed examination of that mark, with the result that that illusion does not constitute an aspect that can be easily and instantly memorised by the relevant public [il punto più interesante].

24 Lastly, it must be stated that the applicant has not adduced any evidence capable of establishing that the change in the perception of the mark applied for resulting from the change in the angle it is viewed from by the relevant public, assuming that that has been established, is such that it constitutes a characteristic likely to be perceived by the relevant public as an indication of the origin of the goods at issue.

25 Third, it should be noted that, contrary to what the applicant suggests, the mark applied for differs from the marks at issue in the cases which gave rise to the judgment of 15 December 2016, Representation of a grey curve and representation of a green curve (T‑678/15 and T‑679/15, not published, EU:T:2016:749). The Court noted in those cases that those marks were reminiscent of both the letter ‘c’ and a crescent moon, which were, moreover, stylised on account of the different shades of colour creating a play of light and shadow, the curves that constitute them being of varying thickness and those curves having a slight twist.

26 In those circumstances, it should be noted that the Board of Appeal correctly found that the mark applied for, considered as a whole, did not represent more than the sum of the lines of which it is composed. Since, as has been pointed out in paragraph 20 above, those lines are not likely to present aspects, or communicate a message, which would be easily and instantly memorised by the relevant public, it must be held, as the Board of Appeal did, that that mark will be perceived by the relevant public as having a decorative purpose.

27 In the third place, it should be borne in mind that, according to the case-law, the notion of general interest underlying Article 7(1)(b) of Regulation 2017/1001 is, manifestly, indissociable from the essential function of a trade mark, which is to guarantee the identity of the origin of the marked product or service to the consumer or end-user by enabling him or her, without any possibility of confusion, to distinguish the product or service from others which have another origin (see judgment of 8 May 2008, Eurohypo v OHIM, C‑304/06 P, EU:C:2008:261, paragraph 56 and the case-law cited).

28 Consequently, it must be held that, contrary to what the applicant claims, it does not follow from the notion of general interest underlying Article 7(1)(b) of Regulation 2017/1001 that a mark must be regarded as distinctive solely on the ground that the registration of that mark is not liable to harm the competitors of the proprietor of that mark.

29 Therefore, it must be held that the Board of Appeal was right to find that the mark applied for was devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation 2017/1001, notwithstanding the references, in the contested decision, to judgments relating to three-dimensional marks.>>

Il marchio denonmnativo TOGETHER. FORWARD è stato deciso dal Trib. UE sempre il 5 ottobre 2022 ,Case T‑500/21.

Analogo esito negativo:

<< In that regard, first, the applicant does not dispute the fact that the mark applied for will be perceived as an advertising slogan whose purpose is to promote the goods at issue. Nevertheless, it maintains that that mark means ‘Collectively (or Jointly). Moving Ahead.’ and that the relevant public could interpret that meaning in different ways following a ‘mental effort’, like, for example, the word mark Vorsprung durch Technik at issue in the case giving rise to the judgment of 21 January 2010, Audi v OHIM (C‑398/08 P, EU:C:2010:29).

19 However, it should be noted that the applicant does not specify to what extent the fact that the mark applied for would be understood by the relevant public as meaning ‘Collectively. Moving Ahead.’ rather than ‘jointly progressing’ is such as to call into question the Board of Appeal’s assessment of the distinctive character of that mark. Furthermore, in view of the proximity of those two meanings, it cannot be inferred that that mark, which is composed of two common English words, does not convey a simple, clear and unequivocal message.

20 Furthermore, it should also be noted that, contrary to what the applicant suggests, the mark applied for differs from the word mark Vorsprung durch Technik at issue in the case which gave rise to the judgment of 21 January 2010, Audi v OHIM (C‑398/08 P, EU:C:2010:29). In that judgment, the Court of Justice noted that the General Court had held that that mark could constitute a play on words and be perceived as imaginative, surprising or unexpected, which is not the case here. It had also pointed out that that mark showed a certain originality and resonance and that at least a measure of interpretation would be required in order to perceive a possible promotional message.

21 Consequently, it must be held, as the Board of Appeal did, that the meaning of the mark applied for is not such as to confer any particular originality or resonance on it, to require at least some interpretation or to trigger a cognitive process, notwithstanding the fact, relied on by the applicant, that that mark does not contain any verb and that the word ‘together’ is positioned before the word ‘forward’.

22 Nor is that conclusion called into question by the applicant’s claim that an interpretative effort would be required on the part of the relevant public in order to be able to infer from the meaning of ‘Collectively. Moving Ahead.’ that the goods at issue were, specifically, respectful of the health of the consumers of those goods. As EUIPO maintains, in essence, that fact is not such as to call into question the fact that that meaning will, on its own, be perceived without any effort by that public>>.

Marchio denominativo/figurtivo descrittivo e qundi nullo per prodotti alimentari

Questo il marchio in esame per prodotti alimentari, respinto dall’ufficio perchè privo di distintiva (art. 7.1.b-c reg. UE 2017/1001).

Il Tribunale UE con sentenza 28.09.2022, T-58/22, Miroslav Labaš c. EUIPO, conferma :

<< 34 in the light of the foregoing, the Court finds that the word element ‘fresh’ of the mark applied for will naturally be perceived by the English-speaking public of the European Union, immediately and without further thought, as a descriptive indication of a characteristic or the intended purpose of all the goods and services covered by the application for registration, and not as an indication of their commercial origin. In order for the registration of a mark to be refused, it is sufficient that there are grounds for refusal in part of the European Union (see, to that effect, judgments of 8 July 2004, MLP Finanzdienstleistungen v OHIM (bestpartner), T‑270/02, EU:T:2004:226, paragraph 21, and of 27 September 2005, Cargo Partner v OHIM (CARGO PARTNER), T‑123/04, EU:T:2005:340, paragraph 57).

35 Thus, the Court considers that there is a sufficiently direct and specific relationship between the word element ‘fresh’ of the mark applied for and all the services at issue, with the result that the relevant English-speaking public will immediately perceive, without further thought, a description of those services or of one of their characteristics.

36 As regards the figurative elements of the mark applied for, the Court finds that they have, as such, no element that is visually eye-catching or likely to be remembered by the relevant public. As is rightly noted by the Board of Appeal, those figurative elements do not divert the attention of that public away from the descriptive word element of that mark, but, on the contrary, reinforce that descriptive character by the representation of two green leaves, which recall the concept of fresh and natural.

37 Nor are the stylisation of the letters of the word element ‘fresh’ of the mark applied for or their red colour likely to hold the attention of the relevant public.

38 Accordingly, the figurative elements of the mark applied for are not, because of the representation of two stylised green leaves, or the stylisation or the colour of the letters, particularly complex; nor are they capable of offsetting or altering the descriptive character of the word element of that mark in relation to the goods and services at issue.>>

Decisione non difficile: l’assenza di distintività è palese.

Il Trib. conferma anche per servizi (classe 39), in quanto correlati ai prodotti alimentari . E’ il punto meno scontato della decisione :

<<30 As regards the services in Classes 35 and 39 covered by the mark applied for, it should be noted that the relevant English-speaking public will directly perceive the word element ‘fresh’ as providing information concerning the kind, quality and intended purpose of those services, since that element may be associated with the object, aim or field of specialisation of the services in respect of which registration of the mark is sought.

31 In particular, a direct descriptive link will always be established in the mind of the relevant public between the word element of the mark applied for and the services at issue, which consist of: (i) the retail sale of foodstuffs and beverages, which the relevant public will identify as fresh goods which are not cooked, have been recently obtained, or have been prepared with fresh goods that have been recently cooked, frozen, canned or preserved by other methods; (ii) the retail sale of toiletries, cleaning preparations and beauty and hygiene products which provide a degree of freshness or contain ingredients that the relevant public will identify as being fresh or as conveying a feeling of freshness and cleanliness; (iii) the retail sale of freezing equipment, the ultimate aim of which is preserving the freshness of retailed products; (iv) the retail sale of tobacco, a product which the relevant public will perceive as being fresh (for example, fresh tobacco leaves), or associated with air fresheners used to counteract the smell of tobacco; and (v) business, administrative, advertising and marketing services which could be specifically aimed at undertakings operating on the market of fresh goods and at companies marketing fresh foodstuffs and beverages.

32 Although the last set of services covered by the mark applied for – business, administrative, advertising and marketing services – are not expressly aimed at undertakings which operate on the market of fresh goods and at companies which market fresh foodstuffs and beverages, they also include specific services which could be used by such undertakings and companies. Therefore, as regards those generic services, the relevant public will naturally associate the word element ‘fresh’ with a characteristic of those services and will easily assume that the services in Class 35, which are normally for the purpose of running a business and facilitating the sale of goods or services, are specialised in the field of fresh goods.

33 As regards the services relating to the packaging and storage of goods in Class 39, it is sufficient to note that the main aim of those services is to keep goods fresh and to avoid any deterioration. Consequently, the word ‘fresh’ may be perceived by the relevant public as a direct indication that the goods which are packaged and stored by using the applicant’s services will be kept fresh in the sense that they will maintain their characteristics and properties.>>

Appello delll’EUIPO su marchio di forma/di posizione

Il 5 board of appeal del l’EUIPO del 29.08.2022, R 197/2021-5 , Blake Holdings appl./appellant, decide un interessante fattispecie di marchio di posizione e/o di forma, consistente in colore grigio applicato a battistrada e porzione laterale esterna di copertoni da camion (“The trade mark comprises the tread and outer portion of a tyre in colour light grey (“Pantone 7527 C”) depicted in the area outside the outer broken line, as shown in the attached representation.”>>).

Ravvisa che manchi di distintività, perchè non si distanzia a sufficienza dalle caratteristiche dei copertoni normalmente reperlbili sul mercato

Premesse:

<< 48   Therefore, contrary to the applicant’s statements, both the claimed light grey
colour and its particular position on the tread and outer portion of the off road tyre
are far for being ‘distinct’ or unique. Thus, taken as a whole, the trade mark
applied for will be perceived only as one of the variants of similar part of off road
tyres existing on the market.
29/08/2022, R 197/2021-5, Outer portion of a tyre in colour light grey (position)
49    In this regard, the Board further recalls that a mere departure from the norm or
customs of the sector is not sufficient to overcome the ground for refusal set out
in Article 7(1)(b) EUTMR. For the mark to fulfil its essential function, namely, to
indicate commercial origin, the difference between the sign applied for and the
norms or customs of the sector must be significant (12/02/2004, C-218/01,
Perwoll, EU:C:2004:88, § 49). In other words, any divergence from the way in
which the competing goods are presented is not sufficient in itself to guarantee
the existence of distinctive character. This difference must also be ‘significant’
and therefore immediately apparent to consumers.
50    What is more, a feature displayed in a sign which is functional in nature and
purpose will generally not be able to confer distinctiveness on the mark, as it will
be associated by the target consumer merely with that specific function, and not as
an indicator of commercial origin, and this, independently of whether the (much
stricter) conditions of Article 7(1)(e) EUTMR are also fulfilled (12/09/2013, T-
492/11, Tampon, EU:T:2013:421, § 23; 18/01/2013, T-137/12, Vibrator,
EU:T:2013:26, § 27; 14/11/2016, R 1067/2016-4, Schlüsselprofil, § 21). In the
present case, as indicated in the communication of Rapporteur of 5 May 2022, the
position mark at stake, consisting of the tread and outer portion of a tyre in light
grey, could also be seen as having a certain functionality, i.e. leaving no black
marks on floors during operations. Contrary to the applicant’s submissions, the
Board observes that that the use of tyres with non-marking properties is
potentially of interest also in relation to the claimed goods, i.e., ‘Off road tires
used with construction, industrial and agricultural equipment; none of the
aforesaid being off road tires for forklift trucks’, including the specific goods for
which the applicant claims that the position mark in question will be used, namely
tyres for Aerial Work Platforms (AWPs), as the examples provided by the
rapporteur show>>.

Pertanto :

<< 51 Taking into account all the above, the Board considers that the sign applied for
cannot be considered to depart significantly from the appearance of (part of) tyres
already found on the market. The relevant public, who is confronted with
numerous more or less similar tyres, will neither carry out a detailed analysis nor
a side by side comparison between the trade mark applied for and the other tyres
on the market, and will therefore perceive the mark applied for solely as being a
mere variety of the tread and outer portion of such tyres. There is no evidence that
the public at large or even the professionals would perceive the sign at hand as a
badge of origin.
52 Therefore, contrary to the applicant’s arguments, none of the features invoked or
their combination support the conclusion that the sign applied for departs
significantly from the norms and customs of the sector. It will therefore not be
perceived as a trade mark without having acquired distinctive character through
use. >>

(decisione segnalata da Nedim Malovic in IPKat)

Marchio di servizio al limite della distintività ma registrato: BLACK BIRTHING BILL OF RIGHTS

L’appello amministrativo del USPTO riforma e registra il marchio <BLACK BIRTHING BILL OF RIGHTS> per servizi offerti da una “non-profit entity promoting improvements in Black maternal and infant health care”.

Rigettata la domanda in primo grado amministrativo per carenza di distintività, viene invece accolta in secondo grado:

<<We agree with Applicant that the specimens show BLACK BIRTHING BILL OF RIGHTS is used in rendering the identified services, and identifies Applicant as the source of those services. See In re ICE Futures U.S. Inc., 85 USPQ2d 1664, 1669 (TTAB 2008) (noting that use in the “rendition” of services is an element of the “sale” of services under Section 45 of the Trademark Act). In particular, Applicant’s social media posts featuring the BLACK BIRTHING BILL OF RIGHTS promote Black maternal and infant health care and are directed to the public at large, including both expectant mothers and care givers.
Moreover, the fact that at least six other “Bill of Rights” marks have registered for
a variety of services—including one for “public advocacy to promote awareness of credit, debit and payment card processing practices”—suggests that there is nothing inherently unregistrable about these kinds of marks. >>

E poi:

<< Here, Applicant is using the phrase BLACK BIRTHING BILL OF RIGHTS to identify its own activities promoting Black maternal and infant health care, as evidenced by the Instagram posts. That is, Applicant uses BLACK BIRTHING BILL
OF RIGHTS to speak directly to expectant Black women and health care providers
about Black maternal and infant health care rights. Applicant also is allowing others to use the phrase BLACK BIRTHING BILL OF RIGHTS as part of their campaigns to promote Black maternal and infant health care. The fact that Applicant allows others to use BLACK BIRTHING BILL OF RIGHTS does not diminish its rights in the mark for its promotional and advocacy services. Indeed, Applicant’s “posting guidelines” for third-party use of the BLACK BIRTHING BILL OF RIGHTS seeks to Serial No. 90581377 ensure that the proposed mark will be associated with Applicant’s efforts to promote Black maternal and infant health care >>

Tenuto però conto che il cuore del servizio è la promozione di alcuni diritti a favore di donne e bambini di colore, sembrerebbe difficile -se fosse da noi- evitare la scure di nullità rappresentata dall’art. 13.1.b del c.p.i.

La decisione è USPTO Trademark Trial and Appeal Board , In re National Association to Advance Black Birth 23 aogosto 2022, Serial No. 90581377.

(segnalazione e link da tweet della prof.ssa Alexandra J. Roberts)

Sulla distintività del marchio UNI per matite e strumenti per scrittura

Il Tribunale UE con sentenza 13 luglio 2022, T-369/21, Unimax c. Mitsubishi Pencil, rigetta la domanda di nullità del (noto, forse <rinomato>) marchio denominativo UNI (scritto un pò schiacciato e in grassetto) per penne e strumenti di scrittura.

Il contestante allegava che il marchio , quale prefisso, ricordava le parole <university> e/o <unicolore> (monocromatico), il che rimandava a caratteristiche del prodotto o al suo uso.

Giustamente però il Tribunale conferma le decisioni amminsitrative e rigetta la domanda

“Luxy” non è confondibile con “Luxury”: quasi un caso di keyword advertising

Il tribunale del Central District of California, 3 ottobre 2021, Case 2:20-cv-00423-RGK-KS, Reflex media c. Luxy decide una domanda di violazione di marchio e concorrenza sleale.

Il marchio azionato era <Luxy> scritto con una certa paricolarità grafica.

Il resistente aveva fatto un’inserzione in Google Search: digitando <luxy> compariva -tra quattro- il suo annuncio a pagamento con titolo <Luxury dating site. For elite relatgionship> (v. riproduzione sotto).

La corte nega che tale titolo violi il diritto sul marchio predetto: <<Plaintiffs’ advertisement does not contain the word “Luxy” or appear to cause any more confusion than the other three advertisements. Even so, Defendant alleges that the title of Plaintiffs’ advertisement — “Luxury Dating Site – For Elite Relationships”—causes confusion because SeekingElite.com and OnLuxy.com offer the same services and because the word “Luxury” is similar to Defendant’s trademark. However, the word “Luxury” and Defendant’s trademark are not alike….the dissimilarity between the marks suggests that Plaintiffs did not intend to deceive the public by incorporating the word “Luxury” into the title of their advertisement.>>

La corte poi nega la genericità di termini <seeking> <seeking millionaire> etc. per siti di incontri.

(notizia e link alla sentenza , come pure l’immagine di cui sotto, tratti dal blog di Eric Goldman)

Sulla genericità (apparente) di marchio denominativo

Interessante decisione sul marchio denominativo “IT’S LIKE MILK BUT MADE FOR HUMANS” per Classi 18, 25, 29, 30 and 32 della classificazione di Nizza, emessa da Trib. UE 20.01.2021, T-253/20, Oatly AB c. EUIPO. (di seguito solo : T.). Presente soprattutto due profili di interesse.

Era stata negata la registrazione per prodotti in classe 29 (caseari …), 30 (dolci biscotti etc.) e 32 bevande etc., § 6, sulla base dell’art. 7.1.b in connessione all’art. 7.2 del reg. 2017/1001 (carenza di distintività).

Il T. ricorda che la funzione protetta è quella distintiva, § 20.

Basta anche un minimo grado di distintività, § 22.

I criteri per il giudizio di distintività sono uguali per ogni clase merceologica, anche se la percezione nel pubblico può variare , § 25.

Il contenuto elogiativo non per questo priva il marchio di distintività , potendola mantenere assieme alla sua valenza promozionale (da noi : art. 13.1.a c.p.i.). E’ il primo profilo di interesse : la possibilità di convivenza dei due aspetti. Osserva il T.: <<consequently, a trade mark consisting of an advertising slogan must be regarded as being devoid of any distinctive character if it is liable to be perceived by the relevant public only as a mere promotional formula. By contrast, and according to settled case-law, such a mark must be recognised as having distinctive character if, apart from its promotional function, it may be perceived immediately by the relevant public as an indication of the commercial origin of the goods and services concerned >, § 28

Circa l’individuazione del parametro soggettivo (consumatore di riferimento) si tratta della english speaking people: e cioè solo quella degli stati ove tale lingua è lingua ufficiale e non di quelli ove, pur non essendolo, è tuattavia lingua largamente conosciuta, § 35

Infine (l’altro profilo di interesse) il messaggio veicolato dal marchio denominativo (sostituto del latte ma privo degli effetti nocivi talora prodotti dal latte) è sufficientemente distintivo. Infatti la contrappoitzione tra la prima parte (è come il latte) e la seconda (ma non ne ha gli svantaggi) porta a tale conclusione. In altra parole il marchio de quo <<conveys a message which is capable of setting off a cognitive process in the minds of the relevant public making it easy to remember and which is consequently capable of distinguishing the applicant’s goods from goods which have another commercial origin. The mark applied for therefore has the minimum degree of distinctive character required by Article 7(1)(b) of Regulation 2017/1001>>, §§ 46 e 48.

Affermazione di una certa importanza e foriero di sviluppi futuri: se si genera un processo cognitivo facilitante la memorizzazione, si genera anche distintività ai sensi delle disposizioni de quibus.