In 2020, the European General Court already settled the matter of whether Louis Vuitton’s Damier Azur pattern is distinctive enough to be a trade mark. In the previous 2020 case the EU General Court rule that European Union Intellectual Property Office’s (EUIPO) second board of appeal had been correct in ruling out the inherent distinctiveness of the mark. The European General Court recognised the Second Board of Appeal of the EUIPO had omitted from conducting a proper evaluation of the evidence presented by Vuitton in support of a claim of acquired distinctiveness of the mark.
Again in 2021, the EUIPO fifth Board of Appeal concluded that the evidence presented by Vuitton was insufficient to support a finding of the distinctiveness, the Board took into consideration that Vuitton had unsuccessfully demonstrated the distinctiveness in relation to the following EU member states: Estonia, Lithuania, Latvia, Slovenia, and Bulgaria.
However, Louis Vuitton brought a new appeal to the European General Court where the court relied on the basic principle of a trade mark and how it acquires its distinctiveness. The European General Court considered that a trade mark through use can acquire distinctiveness, which then requires the proprietor to evidence that at least a considerable proportion of the relevant public who identify the goods or services concerned as originating from a particular undertaking due to that mark. The European General Court also considered that when establishing distinctiveness, it must be assessed how geographically widespread and long-standing the use of the mark had been, and the amount the undertaking invested to promote the mark.
Based on these considerations, the European General Court ruled on the 19th of October 2022 that the EUIPO was correct in their findings that Louis Vuitton presented no evidence of acquired distinctiveness of the Damier Azur pattern.
By Ricardo Maraj-Bennet, an LLM Student from Solent University
