Key Case recap- Procter & Gamble Company v OHIM

Procter & Gamble Company v OHIM

Procter & Gamble attempted to register the trade mark ‘BABY- DRY’ regarding their disposable and textile nappies. The trade mark application was initially refused by the European Union Intellectual Property Office (OHIM), stating that the term ‘BABY-DRY’ was simply made up of two ordinary and descriptive words and was devoid of imaginative or distinctive meaning. This initial decision was made under Article 7(1)(b) & (c) of regulation number 40/94. Procter & Gamble challenged this decision, arguing that the purpose of the product was to keep babies dry, therefore the trademark is suitable and fitting.

The European Court of Justice (ECJ) ultimately overturned the decision made by the OHIM, as the two words that make up the trade mark are unusually structured and to its “resistance to any intuitive grammatical analysis”. The ECJ concluded that ‘BABY-DRIVE’ was in fact an invented term and therefore could not be listed as a descriptive term.

Procter & Gamble’s win established a low threshold for assessing distinctive character form which the ECJ has now retreated.

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