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There are very few moments of mirth for those tracking EU jurisprudence.
But reading that the EU’s trademark office OHIM and the Luxembourg courts have gone into some detail to research vibrators is one of them.
Particularly when it’s in juridical German.
There’s something about seeing the words “stabformig” and “kugelformig” (rod-shaped and ball-shaped) in a legal text that raises more than a smile.
Not least when on further reading it transpires that a legal officer at the trademark office had trawled the internet for vibrators in order to show that a particular design wasn’t unique enough to merit a trademark.
One wonders what OHIM’s IT department thought when the red lights went off in the basement as one work station was found trying to access information online on an “Anal & Vagina Vibrator for men.” No… really… The mind boggles.
Read the judgment in its teutonic glory here, or if you’re hard of German, read it in French here. Though in French it just sounds, well, normal, as if this is what appears in legal texts all the time.
See paragraph 59 for some of the more eye-watering detail.
It’s a case BM brought to your attention last April.
A German sex-toy maker was trying to get a 3D trademark for the shape of one of its devices, described as a ‘new, stylish, futuristic lay-on vibrator’ made up of ‘3 little balls.’
The EU’s trademark office OHIM rejected the application. And now the EU courts have rejected the company’s appeal.
OHIM, judges ruled today, was right to point that there were already “various rod-shaped but also ball-shaped and rounded” products on the market.
And the company couldn’t try and bind the use of its ‘FunFactory’ brand in with the supposed distinctiveness of the product.
“The expression ‘fun’ in relation to the product in question is descriptive of its purpose,” the court writes – another extract that must be read in the original German to appreciate it in full (“… ist dieser Ausdruck in Anwendung auf die fraglichen Waren fur deren Zweck beschreibend…”).
Viel, viel Spass.