Numbers can be trade marks, but not when descriptive, rules ECJ

Polish puzzle publisher Agencja Wydawnicza Technopol has been refused the right to register the number 1000 as a trade mark for a puzzle book because it describes the puzzle book in question so cannot be registered as a trade mark.

Community Trade Marks, which can cover countries in the European Union and other countries that have signed up to the scheme, cannot be made up only of signs that describe characteristics of the goods, such as their quality or quantity.

This is because similar or competing products must not be restricted from using signs or terms which describe their products or services.

Technopol applied for a Community Trade Mark for '1000' but was rejected by the Office for Harmonisation of the Internal Market (OHIM), which ruled that it was too descriptive and not distinctive enough to qualify for trade mark protection. The EU's General Court agreed.

The ECJ ruled that the potential customer of a puzzle book would read '1000' as meaning that a book contained 1,000 puzzles. It said that where the content or nature of goods are easily denoted by a number then a number is likely to be descriptive and therefore not registrable as a trade mark.

"In order for a sign which is composed exclusively of numerals to be refused registration on the basis of [EU trade mark law] on the ground that it designates a quantity, it must be reasonable to believe that, in the mind of the relevant class of persons, the quantity indicated by those numerals characterises the goods or services in respect of which registration is sought," said the ECJ's ruling.

"The General Court based its decision on the fact that the sign ‘1000’ can indicate the number of pages in the goods covered by the application for registration and on the fact that ranking lists and collections of data and puzzles – in respect of which there is a preference for the content to be indicated by one or more words coupled with round numbers – are frequently published in those goods," it said.

"At the very least, the finding made by the General Court, to the effect that the sign ‘1000’ is descriptive in relation to the collections of puzzles contained in those goods, is not incompatible with the specific points made above regarding the scope of [the EU Regulation]," said the ruling.

"The general interest underlying [part of the Regulation on the Community trade mark] is that of ensuring that descriptive signs relating to one or more characteristics of the goods or services in respect of which registration as a mark is sought may be freely used by all traders offering such goods or services," said the judgement.

Editor's note, 10/03/2011: This story was updated to replace comments from an ECJ-produced statement with quotes from the ruling itself, which was published later.