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The distinctive function and distinctive character

Trademarks serve to distinguish the goods or services of one company from those of other companies. This is the trademarks most relevant function for the legal system. Only signs which have the capacity to distinguish, i.e., distinctive capacity, can fulfil that function. For this reason, the rules that regulate trademark law determine that a trademark that does not have distinctive capacity cannot be protected, namely through registration.

In the European Union, both the European Union Trademark Regulation ((EU) 2017/1001) and the Directive approximating the laws of the Member States relating to trademarks ((EU) 2015/2436) include a general rule prohibiting the registration of trademarks "devoid of any distinctive character" (Articles 7(1)(b) of the Regulation and 7(1)(b) of the Directive). Article 7(1)(b) of the Regulation and Article 4(1)(b) of the Directive) and a specific rule prohibiting the registration of descriptive marks, i.e., marks which describe characteristics of the goods or services which they are intended to distinguish (Article 7(1)(c) of the Regulation and Article 4(1)(c) of the Directive).

For abbreviations and acronyms, the prohibition of registration of descriptive trademarks is of particular relevance. This rule has two grounds: first, that only trademarks capable of fulfilling their principal function may be registered, and second, the public interest in preventing the creation of exclusive rights to use terms that other traders may wish to use.

For example, the terms "Orange Juice" cannot be a trademark to identify the product orange juice, not only because they are not able to distinguish the orange juices of one company from those of others, but also because if they were registered, any competitor of the registrant would be prevented from using these terms to indicate the type of product commercialized.

The rule providing for this prohibition has been interpreted by the Court of Justice of the European Union. The CJEU has established that a "sign must be refused for being descriptive if its meaning is immediately perceptible to the relevant public as a sign providing information on the goods and services for which registration is sought." And that the "relationship between the sign and the goods and services must be sufficiently concrete, direct and understood without further consideration." In other words, the method of gauging whether a term is descriptive is as follows: a) identify the meaning of the trademark; b) ascertain whether there is any relationship between the meaning of the trademark and any characteristic of the goods and/or services; and c) if so, ascertain whether the relevant public will identify that relationship concretely and directly and understand it without any further reflection.

The case of abbreviations and acronyms

The question is whether abbreviations or acronyms of descriptive terms should also be considered descriptive. In other words, if the term "ecological" is descriptive to identify ecological products, is its abbreviation "eco" also descriptive? Or if, being the terms "orange juice" descriptive to identify the orange juice product, its acronym "OJ" will also be so. As with any other sign, the answer is given by applying the criterion established by the CJEU.

An abbreviation is descriptive if it is used descriptively and if the relevant public of the product or service in question recognizes the abbreviation as having the same meaning as the full term. In the example of the abbreviation 'eco', to the extent that the public recognizes its meaning as 'ecological', they will see the expression as describing a characteristic of the product or service and not as an indication of the business origin of the product, so 'eco' cannot be registered as a trademark.

Other examples of descriptive abbreviations:

FLEX and FLEXI, as referring to "flexible", to identify footwear (13/06/2014, T-352/12)

MEDI, as referring to "medical", to identify medical services (12/07/2012, T-470/09)

Note that not all abbreviations of descriptive terms are descriptive. It is always necessary to ascertain in the specific case whether the abbreviation is recognized with the same meaning as the full term.

The situation with acronyms is similar. Only if an acronym is understood by the relevant public in a concrete and direct manner and without any further reflection, such as the indication of a characteristic of the product or service in question should it be considered descriptive and consequently be refused its registration. For example, the trademark application TDI was refused for vehicles because the relevant public will understand TDI to mean, respectively, "turbo", "diesel" or "direct" and "injection" (03/12/2003, T-16/02). On the other hand, the acronym OJ, to identify orange juice will not be understood by the relevant public with the meaning of "orange juice", so it will not be descriptive and can be registered.

Differently, in cases where a sign is composed of a non-descriptive acronym in itself, preceding or succeeding a descriptive word combination, it must be gauged whether the "relevant public understands the whole of the sign as a simple expression combined with an abbreviation of that word combination" (E.g., Multi Markets Fund MMF, 15/03/2012, C-90/11 & C-91/11). If so, the application for registration shall be refused.

On the other hand, the trademark will be registered if the relevant public does not rightly and immediately understand the acronym as referring to the combination of descriptive words, but as "a distinctive element that will cause the sign as a whole to prevail over the sum of its individual elements, as demonstrated in the following example: 'The Organic Red Tomato Soup Company - ORTS'."[1]

[1] European Union Intellectual Property Office, Guidelines on trade marks and designs, https://guidelines.euipo.europa.eu/1923149/1868526/orientacoes---marcas/2-4-abreviaturas-e-acronimos

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European Union Trademarks: Can abbreviations and acronyms be registered? - Inventa International

On Nov. 12, 2021, the European Commission published its decision AT-40178 of July 8, 2021, fining BMW, Volkswagen, Audi and Porsche a total of 875 million euros for their involvement in a cartel within European Economic Area territory, upon the postponement of the introduction of techniques to clean exhaust gases generated by new diesel cars.

Daimler received full immunity for disclosing the existence of the cartel to the Commission, while the four car manufacturers previously mentioned benefited from the settlement procedure leading to a reduction of their fines. Volkswagen was fined as a direct participant and as the parent company of Audi and Porsche.

It should also be noted, with regard to fine calculation, that the European Commission applied a 20% reduction to all the car manufacturers fines, as it was the first cartel case based on the limitation of technical development under Article 101(1)(b) of the Treaty on the Functioning of the European Union.

In practice, all these car manufacturers had AdBlue technology (a liquid solution that removes some of the nitrogen oxide (NOx) from car exhaust), allowing them to reduce harmful emissions from diesel car exhaust to a level below what was legally required by the European Union.

However, the car manufacturers deliberately avoided competing with each other by not developing the full potential of this technology to make their diesel cars less harmful to the environment.

Specifically, between 2009 and 2014, the car manufacturers exchanged commercially sensitive information about this technology and agreed on the use of AdBlue tank sizes and refill ranges in their vehicles.

As a result, they deliberately reduced innovation and restricted competition on the technical features of the cars they will bring to market, at a time when managing vehicle pollution is an increasingly important concern for consumers.

With this decision, the European Commission illustrates how competition and innovation can be factors in the fight against environmental degradation and thus contribute to the implementation of the European Green Deal.

This case may give rise to actions for damages, as is currently the case for other cartels in the automotive sector, such as the Truck cartel case. But the specifics of this case, which concerns an agreement that exclusively restricted technical innovation, will raise peculiar questions about the quantification of damages if competition damages actions are effectively started.

For more information on the regime applicable to such competition damages claims in France, see our study published by the Legal 500, accessible via this link: France: Competition Litigation Country Comparative Guides (legal500.com).

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Car Emissions Case: First Sanction of an Anti-competitive Agreement on Technical Development by the European Commission - JD Supra

The world economy has made great strides in its battle with the COVID-19 pandemic for the past two years.

Vaccination of a large part of the global population has allowed economies to reopen. The International Monetary Fund (IMF) projects the global economy to grow by 5.9% in 2021 and 4.9% in 2022, far from the -3.1% recorded in 2020.

This is not to say we have beaten the virus and the ills that it has brought. Far from it.

Latest data from the World Health Organization (WHO) show that by early December 2021, there have been over 263 million confirmed cases of COVID-19 globally, with more than 5 million deaths. Every day presents new or lingering challenges.

While over 8 billion vaccine doses have been administered worldwide, divergences are widening by the day, caused by different countries unequal access to vaccines. Countries with greater financial resources and access to COVID-19 vaccines and policy support are expected to recover more quickly.

From time to time, various variants emerge, making our journey to the next normal protracted and complicated. Just as we seem to have contained the Delta variant, today the world is on guard for the spread of the Omicron variant, first detected in South Africa.

Here at home, the pandemic and pandemic-related concerns remain. Among these are COVID-19 surges, unemployment and underemployment, inflation, rising debt, and poverty. While restrictions were significantly eased last month and the economy seems to be improving from its state last year, sustained growth is still uncertain, given the emergence of new COVID-19 variants and the anticipated lockdowns to contain them.

How do we ensure the Philippine economy stays resilient amid the uncertainty?

One foolproof move seems to be the strengthening of cooperation with our long-standing economic partners, such as the European Union (EU).

There is much room for improvement here. Philippine economic growth has been traditionally consumption-led, and we believe this is an opportune time to start the shift to becoming an investment-driven economy. This will scale up the countrys role in the global supply chain as we take more meaningful efforts towards economic sustainability and addressing environmental risks.

Our think tank, the Stratbase ADR Institute, partnered with the Delegation of the European Union (EU) to the Philippines in two of the five sessions of our recently concluded Pilipinas Conference 2021. The virtual conference brought together thought leaders from the government, business sector, academe, and civil society.

The two sessions with the EU Delegation were anchored on the aim of contributing to national discussions, shaping Philippine foreign policy, and strengthening EU-Philippine cooperation, especially in terms of improving trade relations and pushing for a green economic recovery.

Dr. Ana Isabel Snchez Ruiz, the Deputy Head and Head of Political, Press and Information Section of the EU Delegation to the Philippines, emphasized the need for the Philippines to adopt reforms and policies that will lead the country toward a resilient and sustainable recovery. She noted that the Philippines is the only ASEAN country with GSP+ trade preferences with the EU clearly a competitive advantage.

We heal together and recover together. With all the challenges going on around us, let us accept efforts to create a level playing field and opportunities for industries and sectors for more players to be able to participate, to provide more choices to consumers, and to promote a sustainable approach to trade, she added.

EU-ASEAN Business Council Executive Director Chris Humphrey maintained that European companies think that ASEAN is a great place to invest in. The opportunities are massive; the market is massive. Positioned correctly, you should be making sure you are a natural choice for businesses to come and invest in, he said.

European Chamber of Commerce in the Philippines President Lars Wittig also noted that investments are seen to be much more resilient in the Philippines than in other comparable countries in the region.

Trade and Industry Secretary Ramon Lopez said sustainable development is an overarching agenda in all trade engagements of the Philippines. He welcomed closer engagement with the EU in this area, possibly through the resumption of the PH-EU Free Trade Agreement or FTA negotiations. He also underscored the need for the countrys trade and investment policies to be more people-centered and promote inclusive growth.

Maurizio Cellini, the First Counsellor and the Head of Trade and Economic Affairs of the EU Delegation to the Philippines, said it is essential to gather science, industry, and public donations to speed up the work and leverage all available resources through heightened cooperation between the EU and the Philippines. Such should help create green jobs amid a green resilient economy.

In support of this global initiative, Bangko Sentral ng Pilipinas Governor Benjamin Diokno said that the Philippine financial system is keen on integrating sustainability principles in their entire operations and in assessing their clients businesses environmental impact.

In the same vein, Department of Environment and Natural Resources Undersecretary Analiza Teh said that the Philippine government will pursue sustainable financing and the integration of sustainable production and consumption across interconnected value chains in the country.

The collective show of strategic support from a global partner like the EU, as well as assistance from government agencies and civil society, should fast track significant returns for the common good. These gains can address concerns on climate change, public health and sustainable development in the long-term.

Complex, long-standing and far-reaching issues cannot be addressed by a single player working alone. Only the collective effort of different stakeholders with nuanced perspectives and approaches can help us sustainably manage and solve these challenges.

Victor Andres Dindo C. Manhit is the president of the Stratbase ADR Institute.

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Recover faster with the European Union - BusinessWorld Online

The body representing EU member states has approved agricultural reforms that include a bit more leeway on hemp THC levels where farmer subsidies are involved.

In EU member states, hemp varieties with varying maximum levels of THC can be planted if these are authorised by national regulations. But if a farmer wants EU subsidies, the maximum permissible THC level in hemp is 0.2% currently. Such a low level narrows the varieties available to hemp farmers and increases the risk of a crop being considered hot.

But there has been some progress on this front. Last week, the European Council adopted Common Agricultural Policy (CAP) reforms. Among them was eligibility for subsidies will remain if hemp varieties registered in the official EU seed catalog are stable at less than 0.3% THC. This change followed the European Parliament voting in favour back in October last year.

The change represents a major victory for the European Industrial Hemp Association (EIHA).

This is a great day for the hemp sector and another step towards a greener future for Europe, said EIHA President Daniel Kruse. However, if compared to other countries worldwide, 0.3 % is still a low limit; for instance, Switzerland, in the heart of Europe, has a higher number, and other EU countries already work with higher limits as well.

This isnt just the case in Europe some jurisdictions, including Western Australia, have a limit of 1% giving these farmers somewhat of an edge over their subsidised EU counterparts.

EU farmers wanting to take advantage of the higher THC level permissible will need to wait for a while as the new CAP wont come into force until January 1, 2023

EIHA Managing Director Lorenza Romanese indicated there was still much work to be done for hemp to achieve its full potential in the EU.

We need to keep working together, as there are still other areas where hemp deserves to be better regulated, but we are on the right track.

The EIHA represents EU farmers, producers and traders working across all hemp sectors, including fibre, seed and cannabinoids such as cannabidiol.

Excerpt from:
Hemp Victory In The European Union - HempGazette

Posted: Dec 8, 2021 / 07:30 AM EST / Updated: Dec 8, 2021 / 07:30 AM EST

People wearing face masks to help curbing COVID-19 virus spread wait for a train at a subway station in Lisbon, Tuesday, Dec. 7, 2021. Despite having one of the highest vaccination rates in Europe, with 86.6% of its 10.3 million people inoculated, Portugal is scaling up its pandemic response amid the emergence of the omicron variant. (AP Photo/Armando Franca)

GENEVA (AP) The World Health Organizations European region has recorded a slight drop in both COVID-19 cases and deaths last week after facing a string of weekly increases.

The U.N. health agency also noted European Center for Disease Prevention and Control figures showing that as of Monday, all the 212 confirmed cases of the omicron variant identified across 18 European Union countries up to that point had turned up asymptomatic or mild disease. WHO cautioned that its understanding of the omicron variant will continue to evolve as more data comes in about its impact.

WHO said in its weekly epidemiological released late Tuesday that the weekly number of new cases in its 53-country European region fell 2% to more than 2.6 million new cases reported over the last week with Germany and Britain recording the most and 29,000 new deaths over the period a decline of 3% from the previous week.

The incidence of cases in Europe had been rising since mid-October, WHO said.

Globally, it said case incidence plateaued over the last week with more than 4 million new cases reported, though the count of new weekly deaths rose 10% to more than 52,500. The United States had the most new weekly cases, at more than 752,000, marking a 30% jump from the figure a week earlier.

Cases shot up in Africa which has had by far the fewest cases of any of WHOs six regions so far by 79% to more than 6.3 million cases total since the beginning of the pandemic. But there were 498 deaths in the Africa region for the week, a decline of 13% from the previous week.

Overall, the Africa region has tallied more than 153,000 deaths linked to COVID-19, compared to more than 1.5 million in Europe and 2.3 million in its Americas zone, WHO said.

The counts of verified cases and death linked to the pandemic are likely to far underestimate the actual toll, officials have said.

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Follow APs pandemic coverage at https://apnews.com/hub/coronavirus-pandemic

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WHO: Weekly COVID cases dip in Europe after weeks of gains - CBS17.com