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Exclamation mark cannot be trademark

6 October 2009

Clothing and perfume company Joop! has failed in its attempt to register the exclamation mark as a trademark.

The Court of First Instance found that the punctuation sign did not have the required distinctiveness to secure registration, nor had it acquired through use.

Earlier in the process a registrar at the Office for Harmonisation in the Internal Market rejected the application on the basis that the public would only perceive the exclamation mark as “mere laudatory advertising or as an eye-catching gimmick”, not as an indication of the commercial origin of the goods.

The Luxembourg court said that such signs could be regarded as distinctive and benefit from trademark protection, but only if consumers associated them immediately with a specific product or service.

A mere exclamation mark, without any specific graphical design, would not allow consumers to make that link, the court ruled, upholding the registrar’s findings.

“The court finds that the documents submitted by JOOP!, through which it seeks to demonstrate that the marks applied for have acquired distinctive character through use in the community, refer only to the German market,” the court said in a summary of the judgment.

“Moreover, the only evidence submitted consists of three photos of jeans to which a piece of cloth, or a label, is attached showing an exclamation mark.

“That evidence is clearly incapable of providing proof of the relevant consumers’ knowledge of the mark applied for before the date on which the application for registration was filed.”

Kirsten Gilbert, partner at Marks & Clerk Solicitors, said the application had very little chance of success from the outset.

“An exclamation mark is a common symbol and a punctuation mark and is entirely lacking in distinctive character,” she said.

Gilbert said it was not impossible to register such symbols as trademarks but that “the bar is set incredibly high”.

“The applicant must show that such a symbol has acquired distinctiveness through use. The public must make a clear, automatic connection between the mark and the company, and the judges have plainly decided that this is not the case.”

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