12 January 2011

From Russia with (trade mark) love: a reprise


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Image: “Jing old bells” by Madalena Pestana on Flickr

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About a year ago I blogged on the “Christmas” trade mark that the Russian bank Vostochny Express managed to register. In that post I expressed some doubts as to the registrability of the trade mark in question. Well, I must admit that was really surprised when I found out that Vostochny Express succeeded to defend its trade mark at court in Moscow.

The bank has brought an action before the Moscow Court of Arbitration (a court competent in commercial matters) against another bank, Bank Rossisky Capital, that had used the word “Christmas” on its website. Claimant alleged the use on the website was one in commerce and thus infringing claimant’s rights in the trade mark.

Surprisingly to me, but the court found that defendant’s use was capable of creating confusion between both banks’ products and services. Consequently, the court ordered the defendant to cease using the word “Christmas” in connection with its products and services.

All this would be quite funny if it was not absurd. Like other enterprises, banks also advertise their products and services, especially loans, more extensively during Christmas time. Since the essential function of a trade mark is to identify the origin of product or service, “Christmas” clearly fails to serve as such identifier. It simply cannot distinguish one bank’s business from that of another.

Vostochniy Express’ trade mark registration is definitely amiss and even borders with abuse of law.


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