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Amendments to Trademark Laws

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Mai 16, 2014 (Newsletter Issue 8/14)
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New Common Practice on Black & White Marks

OHIM and the participating national offices have issued a Common Communication for trademarks registered in black and white.

Under the new Common Practice, a black & white (or greyscale) mark will only be considered identical to a sign in colour where the differences between the signs are so insignificant that they will go unnoticed by the average consumer. An insignificant difference will be one that a reasonably observant consumer will perceive only upon a side by side examination of the marks.

This change of practice will have consequences for, use, oppositions and priority claims. The practice does not affect infringement issues, use of black and white marks in colour for the purposes of acquired distinctiveness, the assessment of similarities between colours, and colour marks per se.

OHIM will publish the implementation of the Common Practice in its Guidelines on 2 June 2014. The practice will enter into force immediately after publication.

Please note that there is some divergence between the various offices as to whether the new Common Practice applies to pending applications or only applications filed after the relevant implementation date, and also as to whether it applies to pending proceedings or only proceedings filed after the implementation date.

Further, Sweden, Denmark and Norway have been constrained from participating in the new Common Practice because of their national laws. The Common Communication confirms that Italy, France and Finland have also decided not to implement the Common Practice.

Source: and King & Wood Mallesons, United Kingdom