Louis Vuitton fails to convince on acquired distinctiveness

The General Court of the European Union has upheld the EU IPO Board of Appeal's decision to reject the evidence filed by Louis Vuitton as insufficient in relation to its claim of acquired distinctiveness in relation to its Daimer Azur pattern (T-275/21). 

Back in 2019, the General Court had agreed with the EU IPO Board of Appeal's finding that this mark did not possess inherent distinctive character, but that the Board had not addressed the issue of whether the mark had acquired distinctive character. Louis Vuitton filed evidence to try and argue that the mark had acquired distinctiveness character through their use of the mark throughout the EU.

However, because their evidence did not demonstrate that the mark had acquired distinctive character in Estonia, Lithuania, Latvia, Slovakia, Slovenia and Bulgaria, the General Court agreed with the Board of Appeal's finding that their mark had not acquired distinctive character in the EU as a whole. Whilst it is accepted case law that in order to demonstrate that a trade mark has acquired distinctive character, this doesn't have to mean that an applicant is required to file evidence of such use in each EU Member State (i.e. if it can be shown that due to a geographic, cultural or linguistic proximity between two Member States, the relevant public of the first has a sufficient knowledge of the products and services that are present on the national market of the second), this serves as a further reminder to ensure that evidence filed in support of a claim of acquired distinctiveness addresses use throughout the EU as a whole, and not just a substantial part of it.