Neither will it be possible to obtain registration for example for the mark
'BEER' on
beer-products; or 'CAR'
on automobiles; or 'CARPET'
on carpets.
Similarly, due to its deceiving nature, is it not possible to use 'BEER'
as a trademark on pops and sodas; 'WHISKEY'
on apple cider; 'BUTTER'
or 'a picture of a cow' on margarine products; the sign 'SUGAR'
or a picture of a real sugar on artificial sweeteners or sugar-substituting
goods.
Same is applicable to a sign consisting of a geographic indication which is
false and/or deceiving to the public, like 'FRENCH'
on wines, being too general and thus lacking distinguishing nature when
concerning a wine-product of France, or due to its deceiving nature when
concerning a wine-product of another geographic region.
Here I would like to draw your attention to the fact that although
appellation of origin is not specifically ruled by our legislation, still
the Office/Bureau may raise objections to the registration of a mark if it
considers same of a deceiving nature: 'BORDEAUX
WINE' or 'CEYLON
TEA' on products not originating in those areas.
Also, and nevertheless the fact of true and correct indication, it will not
be possible to obtain registration of a sign consisting of an indication of
the main organic source of a product, due to unfair monopolizing of the
terms: e.g. 'ALOE'
on aloe-derived products; 'CORN'
on flour; 'GLASS'
on glasses or bottles; 'CHINA'
on china-wares.
Another
objective principle leading to invalid, or, if not refused by the Bureau, to
very weak registration, is the trademark consisting of a common or generic
name of a product as the exclusive sign.
Common
or generic names are those that through current language or established
trade practice became the customary designation of goods and services, and
thus the descriptiveness thereof.
To
mention only a few:
goods : 'desk calendar'; 'foot-wear'; 'wall panel';
'liquid soaps';
services : 'fast food'; 'motels'; 'rent-a-car' or
'car-rental';
Sometimes it may have been the very own
trademark owner whom through advertising, description at sales or by other
means, has made his trademark a common name. In said cases he will remain
the owner of said trademark but cannot avoid nor stop others in using same
term as a secondary descriptive sign with his trade-mark. ('FRIDGE' or
'Frigidaire'; 'FAX' or 'facsimile'; etc. ....)
Objections can also be raised to or the
registration denied if a trade or ser-vice mark:
A mark cannot be registered if it constitutes
the reproduction, in whole or in part, the imitation or the translation,
liable to mislead the public of a well-known mark belonging to a third
party. It would run against the interests of consumers if a mark resembling
or imitating a well-known mark to the extent of confusion is permitted.
This is
not only applicable to filed or registered well-known marks, but also to
those not yet registered nor used in this jurisdiction.
══ E.g. should 'Coca-Cola' not be registered or
even filed in Aruba, still the Office would refuse its registration on
behalf of another party. This not only for reasons of deceiving of the
public, but also because piracy or forfeiting can be very harmful to the
good reputation of the national commerce, thus the national economy.
Denial
or objection is likewise applicable to the registration of a trade mark for
other products than those for which the well-known mark is used, even when
concerning totally different goods or services, when the use of the
identical or similar mark, or the imitation thereof may mislead the
consumers by making them believe that there exists a link to the well-known
mark.
Thus,
nevertheless the fact a trade mark registered in a certain class may
generally be used by someone else on his goods or services, resorting under
a different category and its registration requested, still the registration
thereof on behalf of the latter can be denied or its registration disputed
by the first owner on grounds of deceiving to the public with respect to the
origin of the goods and/or services, or on grounds of unfair competition.
══
E.g. Class 12: automobiles - trademark
'Chevrolet' registered by General Motors.
It may
be deceiving to the public if a third party uses the service mark 'Chevrolet
Rent-A-Car' and maybe not even using cars of said brand.
Likewise
are inadmissable marks which violate any other right of a third party, e.g.
infringement of copyrights or rights in an industrial design, or marks
contrary to rules on prevention of unfair competition, for example, a mark
containing the representation of a product of a competitor.
Further restrictions:
1. Words
or illustrations contrary to morality or public order.
Note:
A mark contrary to morality may be a mark containing an obscene picture, and
contrary to public order when it is offensive to religious sensitivities,
to law enforcement or to a nation's safety.
2. Coat
of arms, flags or other state emblems, or any imitation thereof in the
heraldic point of view, of a state-member to the Paris Union, nor the coats
of arms or any slight alteration thereof of the Kingdom of the Netherlands
and /or any part of said Kingdom, including the one of a public entity
established therein.
3.
Official marks or stamps for control or guarantee, including any imitation
thereof from a heraldic point of view, used by states-members to the Paris
Convention for same or equivalent kind of goods or services.
4. Names, the abbreviations thereof, and
emblems, or slight alterations thereof, of recognized international
organizations, or parts thereof.
Marks representing, resembling or imitating the
items described under the above points 2 to 4 cannot be registered, but for
duly authorization by the relevant authorities of the involved State or
International Organization, since they would give otherwise a false
impression of an official link between the goods and services concerned and
the State or Organization.
This is in accordance with Article 6ter
of the Paris Convention for the Protection of Industrial Property by which
the states-member agree to refuse or to invalidate the registration, and to
prohibit by appropriate measures said use without duly authorization by the
competent authority.
