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Did you know that the F1 Formula 1 logotype as displayed above is a Community trade mark? Well, one could suspect this, since the organizators of huge sport events have already long ago recognised the power of trade mark law. However, did you know that Formula One’s Community trade mark is of a weak distinctive character? At least according to a decision (T‑10/09) that the General Court of the European Union delivered yesterday.
A suprising one, is it not?
Background
In April 2004, Racing-Live SAS filed an application with the Community trade mark office (OHIM) for the registration of the following figurative sign as a Community trade mark
for goods and services in the classes 16, 38 and 41. One should know that Racing-Live SAS is not a random player – it has recently been taken over by the major US broadcaster ESPN.
Being the properietor of national and Community earlier rights in the same classes, Formula One Licensing BV alleged likelihood of confusion and filed a notice of opposition against the registration before OHIM’s Opposition Division. The latter rejected the application of Racing-Live SAS. This was followed by an appeal before the Board of Appeal, which ruled in favour of Racing-Live SAS. Formula One Licensing BV then appealed that ruling before the General Court.
The decision of the General Court
Since the earlier marks and the mark applied for relate to the same classes of goods and services, the Court had to compare the similarity between the marks in order to determine the alleged likelihood of confusion.
Applying the global appreciation test the Court found that, albeit some similarities, the marks in suit are not identical in phonetical and visual terms: the mark applied for is a compound mark, in that it is composed of two word elements, “F1” and “LIVE” and some figurative elements, whereas the earlier marks on which the opposition is based are a logotype (a Community figurative trade mark) and the “F1” word marks.
From a conceptual point of view, the Court noted, the earlier marks designate a specific category of racing car – Formula 1 cars – and can also be perceived as implicitly referring to Formula 1 races. The mark applied for carries the same message, but the addition of the word “LIVE’”, which suggests the reporting or broadcasting of an event in “real time”, makes it conceptually richer than the earlier marks. As a consequence, although the common word element “F1” makes the signs at issue to some extent conceptually similar, the degree of similarity remains weak.
The Court views the foregoing fortified by the results of a public survey witnessing that the public at large perceives that the abbreviation “F1” is used in a descriptive context and is just as generic as the term “Formula 1”.
Consequently, the Court denied the existence of a likelihood of confusion and dismissed Formula One BV’s appeal.
My personal view
Having read the decision of the General Court I could not fully agree with it. Try to search for “F1-LIVE” on the Internet and look at the search results displayed on the first two pages. Why only the first two? Because I would not call it “reasonable” to view more of them.
In any case, my preferred search engine shows results almost exclusively related to Formula One.
Thus, the General Court’s decision fails to provide for legal certainty. It is nothing but a formula of confusion.
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