On April 15, 2024, the Board of Appeal (BoA) issued a key decision in case R 1773/2023-1 regarding the EUTM application for a position mark featuring the letter “I” and a heart on a clothing item.
The BoA confirmed that categorizing the contested sign as a position mark does not establish its distinctive character in relation to clothing in Class 25. The General Court (GC) had previously ruled in case T‑19/20 on February 12, 2021, that the sign lacks distinctive character across the EU. It was deemed a banal, non-distinctive sign that is immediately understood as ‘I love’ without further consideration, with its promotional message taking precedence.
The BoA concluded that, since the position of the mark is where trade marks are commonly placed by manufacturers, consumers are unlikely to perceive it as an indication of origin. The sign’s placement in a typical position used for advertising does not contribute to its distinctiveness.
This decision underscores the importance of establishing clear and distinctive character for position marks, particularly in competitive markets like clothing, where commonplace designs may not be sufficient to serve as a trade mark.
For further details on this ruling, please refer to the full decision here.
