Whoops! You cannot trade mark an exclamation mark!

30 September 2009

The European Court of First Instance has today ruled that German clothing and perfume manufacturer Joop! cannot register an exclamation mark as a trade mark.

Joop! had previously attempted to register the punctuation mark both on its own and within a rectangle at OHIM, the European trade mark office, but its application was rejected. The Court of First Instance today upheld the decision by OHIM, claiming that the sign lacked ‘distinctive character’. Kirsten Gilbert, Partner at Marks & Clerk Solicitors, comments:

“This 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. While it is not impossible to register such symbols as trade marks, 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 today have plainly decided that this is not the case.”