Procter & Gamble: Trade mark

United Kingdom
31/07/1999
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Procter & Gamble (P&G) applied to register “Baby-dry” as a Community trade mark in respect of disposable nappies. The application was rejected by the Office for Harmonisation in the Internal Market (OHIM) on the basis that the mark was purely descriptive. P&G appealed to the Board of Appeal and sought to adduce evidence to establish that the mark had acquired a distinctive character through use. The Board of Appeal rejected the appeal and held that it was not open to P&G to adduce evidence which had not been argued before the OHIM. A further appeal was lodged with the CFI.

The CFI held that the mark “Baby-dry”, read as a whole, informed consumers of the intended purpose of the goods. It did not seem to exhibit an additional feature which might render the sign as a whole capable of distinguishing P&G’s goods from those of other undertakings. Therefore, the CFI agreed with the Board of Appeal on this point.

However, the CFI allowed the second part of the appeal ruling that it was not open to the Board of Appeal, which enjoyed the same powers in determining an appeal as the OHIM, simply to reject P&G’s arguments solely on the ground that they were not raised before the OHIM. The Board of Appeal should have either ruled on the substance of that issue or referred the matter to the OHIM. The CFI therefore annulled the decision of the Board of Appeal of the OHIM. (Procter & Gamble v. OHIM. Case T-163/98, judgment of 8.07.99.

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